Scottish Court of Session Decisions

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Cite as: [1875] ScotLR 12_242, [1875] SLR 12_242

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SCOTTISH_SLR_Court_of_Session

Page: 242↓

Court of Session Inner House First Division.

Tuesday, January 19. 1875.

[ Lord Mackenzie, Ordinary.

12 SLR 242

Hume and Others

v.

Young, Trotter & Co.

Subject_1Process
Subject_2Jury Trial
Subject_3Competency
Subject_4Nuisance — Judicature Act, 1825, § 28 — Procedure Act, 1850, § 49 — Evidence Act, 1866, § 4 — Court of Session Act, 1868 — A.S. 10th March 1870.

Jury Trial — Special Cause — Evidence Act, 1866, § 4.
Facts:

Held that in an action for nuisance the case must be tried by a jury unless both parties consent that it should be tried otherwise, or on “special cause shown,” and that in every case it is a question of circumstances whether or not there is “special cause.”

Circumstances in which held that special cause had not been shown why an action for nuisance should not be tried by jury.

Headnote:

This was an action brought by certain reparian proprietors on the banks of the Whitadder for interdict against the owners of the Chirnside paper mill, to prevent them from polluting the stream, so as to render it unfit for primary uses.

The pursuers moved the Lord Ordinary to take the proof himself, whereas the defenders maintained that it should be tried by jury.

The Lord Ordinary ( Mackenzie), reported the case to the First Division, and pointed out that the question must be governed by the interpretation of the provisions contained in 6 Geo. IV., c. 20, § 28; 13 and 14 Vict., c. 36, § 49; 28 and 29 Vict., c. 112, § 4; 31 and 32 Vict., c. 100, § 27, subsections 3 and 4; Act of Sederunt, 10th March 1870, § 1, subsections 3 and 5.

The pursuers argued that it was quite competent for the Lord Ordinary to take the proof himself. This was a case in which such a course was advisable, for (1) There was a plea of prescription which was founded not only upon the use by the defenders when the mill was in its present situation, but when it was several miles further up the river. (2) There was a plea founded on pollution of the river from other sources, such as to render it unfit for primary uses, and extending over the prescriptive period. (3) A great amount of scientific evidence would require to be led. In these circumstances a jury were not so well qualified to judge as the Lord Ordinary.

The defenders argued, the Lord Ordinary could take the proof in a case of this description, but only (1) On the motion of both parties; or (2) Upon special cause shown. Here there was no special cause, but the case was one peculiarly fitted for trial by jury.

At advising—

Judgment:

Lord President—Under the 28th section of the Judicature Act there is an enumeration of causes which are required by the statute to be tried by Jury. The first relaxation of that rule is contained in the Act of 13 and 14 Vict., c. 36. The 49th section of the Act provides—“That in any cause before the Court of Session, not falling within the causes specially enumerated in the Judicature Act as appropriate to be tried by Jury, it shall be competent to the Lord Ordinary, before whom such cause depends, with the consent of both parties, or upon the motion of one party, with leave of the Inner House obtained upon the report of the Lord Ordinary, or to the Court when the cause comes into the Inner House, to appoint the evidence in such case, or any portion of such evidence, to be taken by commission: Provided always, that it shall be competent for the Court to allow proof on commission in any of such enumerated causes where the action is not an action for libel or nuisance, or properly and in substance an action of damages.”

It is obvious that the Legislature in passing this enactment thought that actions of libel, nuisance, and damages should not be tried in any other way than by Jury. The only alteration made on the rule since the enactment I have just quoted is contained in the 4th section of the Act 29 and 30 Vict. c. 112. It is there enacted:—“If both parties consent thereto, or if special cause be shown, it shall be competent to the Lord Ordinary to take proof in the manner above provided in section first hereof in any cause which may be in dependence before him, notwithstanding the Act passed in the sixth year of the reign of His Majesty King George the Fourth, chapter one hundred and twenty, section twenty-eight, and the provisions contained in the Act passed in the thirteenth and fourteenth years of the reign of His present Majesty, chapter thirty-six, section forty-nine, and the judgment to be pronounced by him upon such proof shall be subject to review in the like manner as other judgments pronounced by him.”

Here, then, is a further relaxation of the rule, and it is made competent to try the class of cases before restricted to trial by Jury without a Jury on condition either of consent of parties or if special cause be shown. There is apparently nothing in the Court of Session Act of 1868, or in the Act of Sederunt following thereon dealing with this matter, and therefore I am of opinion that we can lay down no general rule for the guidance of the Outer House in cases of this sort, for the Lord Ordinary can proceed only on consent of parties or on special cause shown in the particular case. I confess I can't see anything special in this case, and unless special cause is shown we are bound to

Page: 243↓

leave the case to be tried by Jury. I further think that the case is a very proper one to go to a Jury, and I do not see that it involves any special difficulty.

Lord Deas concurred.

Lord Ardmillan—As the law and practice of the Court stands, this is a case which would go to a jury. It is one of the enumerated causes, and its natural and appropriate course is that it be tried by a jury. The defender desires that it may be so tried. So we have not the consent of both parties to a trial without a jury.

There remains the power given to the Lord Ordinary to dispense with a jury, and try it by a proof under the Evidence Act, in respect of special cause—a cause peculiar to this case. But I cannot perceive such special cause. There can be no departure without consent and without special cause, from the general rule. I therefore agree with your Lordship.

Lord Mure concurred.

The Court held that the case must be tried by Jury.

Counsel:

Counsel for the Pursuers— Balfour. Agents— Webster & Will, S.S.C.

Counsel for the Defenders—Solicitor-General ( Watson) and Macdonald. Agents— Murray & Anderson, W.S.
1875