Scottish Court of Session Decisions

Lord President—I understand that the Court is of opinion that this case should be tried before a jury, and I am not disposed to differ from that view. I think there is a disadvantage in having a question of pure fact tried by a proof before the Lord Ordinary, where the evidence is likely to run to some length. In that event the result is that the case afterwards comes up upon a reclaiming note with a big print, which involves the expenditure of a great deal of judicial time, and necessitates considerable expense, which would otherwise be avoided. The probability is that the verdict here will put an end to the case, and that we shall hear no more about it.

Lord Mure, Lord Shand, and Lord Adam concurred.

The Court recalled the interlocutor reclaimed against, and remitted the case to the Lord Ordinary for trial before a jury.

Thereafter, issues having been adjusted, the pursuer gave notice for trial for the ensuing Circuit Court at Inverary, which was fixed to be held on 26th March, nine days after the notice. The defender objected that the notice was too short, and moved the Lord Ordinary to fix the trial to proceed before himself.

The Lord Ordinary ( Kinnear) reported the cause to the First Division.

Argued for the defender—A trial at the approaching circuit would put the defender to great inconvenience on account of the exceeding shortness of time, only nine days, and would practically result in injustice, as the defender could not possibly get his case prepared at such short notice. A trial by jury at Iuverary in a right-of—way case, where the road in question lay near the place of trial, was a most undesirable method of trying the rights of parties, as it would be impossible to get an unbiassed jury.

Replied for the defender—The issue between the parties was a very narrow one, and depended upon the evidence of witnesses on the spot. The evidence as to the use of the road could easily be obtained, and was not of a kind requiring great research. It was desirable in the interests of all parties that the case should be tried with the least possible delay.

It appeared in the course of the discussion that the approaching circuit at Inverary was to be a maiden circuit, and that in consequence no jury had been cited.

The Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 46, provides—“Where a cause is appointed to be tried at any circuit town in any period of vacation or recess, and no special diet is fixed for such trial, it shall be lawful for either of the judges presiding at the sittings of the Circuit Court of Justiciary in such circuit town to try the same, … and where a cause is so tried, it shall not be necessary that a separate list of jurors shall be returned for the trial thereof, but the jury shall be chosen from the list of jurors summoned to attend the Circuit Court of Justiciary, who shall be bound by their citation to serve if required at the trial of all civil causes for which no special diet of trial shall have been appointed.” …

At advising—

Lord President—The pursuer here is exercising a right under the statute, and not appealing to the discretion of the Court. Nor is he proposing it as a matter for consideration when the case should be tried. He has this right subject to the modification that if the opposite party consider himself to be prejudiced he can move the Lord Ordinary to try the ease before himself, and the question then becomes one for the discretion of the Court.

The present case seems to me to be one for the interference of the Court. I am not sure how far the pursuer is entitled to have a criminal jury to try a civil case, all the more when there are no criminal causes set down for trial, and I am not by any means sure that he can have a special jury or a civil jury summoned, especially looking to the provisions of section 46 of the Act 1868. There is so much difficulty attending the whole matter that I think we ought to appoint the case to be tried before the Lord Ordinary.

The complaint of want of time for the preparation of the case which has been urged by the defender has its weight too, but too much importance must not be attached to it. If it can be shown that the circuits have been fixed to take place so soon after the rising of the Court that a reasonable time for the preparation of the case has not been provided, that would be a matter requiring consideration also. In the present case I do not say whether the time available is sufficient or not. The embarrassment offered by the circumstance of no criminal jury having been cited for the approaching circuit at Inverary makes me think that the case ought to be tried before the Lord Ordinary.

Lord Mure concurred.

Lord Shand—If the issues in this case had been adjusted four or five weeks ago, and then notice had been given for the circuit, I should not in these circumstances have been inclined to interfere.

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