Scottish Court of Session Decisions

Subject_1Process
Subject_2Jury Trial
Subject_3Trial without Issues
Subject_4Court of Session Act 1868 (31 and 32 Vict. c. 100), sec. 27, sub-sec. 3. Headnote:

This was an appeal for jury trial in an action for damages on account of the death of the pursuer's husband by an accident on the defenders' line. Parties were not agreed upon an issue for the trial of the cause, and in the course of the discussion

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* Decided November 4.

Page: 132↓

on the issue proposed by the pursuer the Court suggested that the cause should be tried on the record without issues. The pursuer's counsel consented, but the defenders' counsel stated that before consenting be desired the opinion of the Court on the question whether, if the case were tried on the record, copies of the record ought to be laid before the jury. If so, he could not consent.

The Court of Session Act 1868, section 27, provides, with regard to jury trials in causes originating in the Court of Session, that “if the parties consent, and the Lord Ordinary approves, it shall be competent to direct the cause to be tried by jury without adjusting any … issue, and such cause shall be tried, as nearly as may be, in the same manner in which causes are tried in which issues have been adjusted according to the present law and practice.”

The Act of Sederunt, 10th March 1870, provides (section 1, sub-section 5) that “it shall be competent to try any cause by jury on the record without issues if it shall appear to the Lord Ordinary expedient that such cause shall be so tried.”

The Court were of opinion that copies of the record should not be laid before the jury, the Lord Justice-Clerk observing that “the proper course is for the Judge to put before the jury the points that arise on the record. It is quite improper that the jury should have the record itself in their hands.”

The defenders' counsel then agreed that the cause should be tried on the record.