Scottish Court of Session Decisions

Lord President—My Lords, when this case was before us on May 30, 1873, the interlocutor which we pronounced was to the effect of dismissing the claim of one of the parties, and appointing the others to lodge issues.

We did not in express terms find that the cause was one which should be tried by a jury, but we certainly formed an opinion how it ought to be tried, and I see I said that it was a case just like other cases of pedigree, and further, that it was a matter for the discretion of the Court, and that the practice had been to send such cases to a jury. The other Judges concurred, and Lord Deas observed that the great advantage of trial by jury is that the verdict fixes the matter of fact, which otherwise would be open to controversy in this Court and in the House of Lords. Now, it is quite open to us to reconsider the view which we took then; and if I were now satisfied that the case differed from other pedigree cases, I should be ready to change my opinion, but I cannot see that any such difference exists. It is necessary to observe the position of the parties under this action. They go before the Sheriff of Chancery, and his proceedings on the fact have the same effect as the verdict of a jury. But parties who go before the Sheriff of Chancery may not desire that the question of fact should be settled by him, but by a jury, and they are entitled, under sec. 41 of the Act of 1868, to bring their competition here for that purpose, and we are directed to consider it. I think the party who appeals under sec. 41 has a certain right to be heard, and the appellant is standing on that right, and demanding to have the case tried in the statutory way. It is said, no doubt, that there is a great deal of documentary evidence, but I am by no means sure that that makes the case an unfit one to be tried by a jury. If the case is one depending to a great extent on correspondence, I do' not see that a jury under the discretion of a Judge is not a proper tribunal to deal with that. Questions may arise as to the genuineness of documents, and surely that is a jury question, and one which may often arise. We know also that tombstones and such like pieces of evidence require a great deal of investigation, and require that every-day commonsense which is the best characteristic of a jury.

The other Judges concurred.