Scottish Court of Session Decisions

By the Judicature Act 1825 (6 Geo. IV. cap. 130), section 40, it is, inter alia, “expressly provided and declared, that in all cases originating in the inferior courts, in which the claim is in amount above forty pounds, as soon as an order or interlocutor allowing a proof has been pronounced in the inferior court (unless it be an interlocutor allowing a proof to lie in retentis, or granting diligence for the recovery and production of papers), it shall be competent to either

Page: 349↓

of the parties, or who may conceive that the case ought to be tried by jury, to remove the process into the Court of Session.” ….

James Mitchell, farmer, Headyton, in the county of Banff, was owner of the entire horse “Just-in-Time,” which he hired to William Urquhart, residing at Longmanhill, also in the connty of Banff, for the season of 1883. The hire for the horse was £35, and the season was to last from the beginning of April till the middle of July. Urquhart took possession of the horse about the end of March 1883, and retained the custody till its death on or about the 22d day of May following.

Mitchell raised the present action in the Sheriff Court of Banffshire against Urquhart to recover a sum of £60 as the value of the horse. He averred that the horse had become ill about 16th May, and had not been properly attended to, and that its death was the consequence of the defender's negligent and improper treatment of it, and he further averred that he received no intimation of the illness or death of the horse, and that its carcase was disposed of without his consent.

The defender gave a general denial of these statements, and averred that the horse was never sound, and that it died from natural causes, and not from neglect on his part.

The Sheriff-Substitute ( Scott-Moncrieff) on 12th December 1883 pronounced an interlocutor allowing both parties a proof of their averments.

The defender appealed to the Court of Session for jury trial, and argued — Under section 10 of the Judicature Act 1825 he was entitled to have the case tried by jury. That Act had fixed the amount entitling a party to jury trial as at £40; here the sum at issue was £60. It devolved upon the respondent to show that the case was not suited for jury trial.

Argued for pursuer—There was no rule that in no circumstances could the Court remit the case to the Sheriff, and in an action for a sum comparatively small a jury trial would be far too expensive. The matter was one for the discretion of the Court, and there was nothing in the Judicature Act to bar the Court from exercising that discretion. The Court would take the whole ciroumstances into account in disposing of the question, and not consider merely whether or not there was issueable matter.

After consultation with the Judges of the Second Division,