Scottish Court of Session Decisions

Lord President—I am afraid that we have no alternative open to us but to follow the Act of Parliament. The Judicature Act 1825 appointed this class of case to jury trial, and so for a long period it was impossible that they could be tried in any other way. The Act of 1850 first made some slight relaxation of this rule with regard to certain enumerated cases; and now we have the Act of 1866. It relaxes the rule still further, and provides that if both parties consent, or if special cause is shown, it shall be competent to the Lord Ordinary to take the proof in the manner provided by the first section of the statute. But the condition of the competency of a proof before the Lord Ordinary in such cases is (1) consent of both parties, or (2) special cause shown. Now, the only special cause shown here is, what was suggested by the respondent, that this class of case was not suited to jury trial, but that to my mind is a general and not a special cause. A special cause would be one which was peculiar to the case before us, and nothing of that nature was even attempted to be shown. I think therefore that we are bound by the statute, and that this interlocutor should be recalled and the case sent back to the Lord Ordinary for jury trial.

Lord Mure—Until 1866 such a case as this could not have been tried otherwise than by a jury, but with the Evidence Act of that year a change was made in the law; and with the consent of parties, or upon special cause shown, the case might be tried by a proof before the Lord Ordinary. In the present case there is no consent of parties, and I agree with your Lordship that no special cause has been shown, so that we have no alternative but to remit the cause to the Lord Ordinary to be tried by a jury.

Lord Shand—I have great difficulty in differing in this case from the Lord Ordinary. The statute says that upon special cause shown the case may be tried otherwise than by a jury, and the specialty here is, that besides this being an action of damages for seduction there is also a conclusion for aliment. If the rule be adopted that such cases are only to be tried by a jury we shall be flooded with cases of this kind which should undoubtedly be disposed of in the Sheriff Court. Looking to the rank in life of these parties as set out on record, I should be disposed to hold that quite a sufficient cause has been shown for trying this question by means of a proof before the Lord Ordinary. I am therefore for adhering to this interlocutor.

Lord Adam—If this question was open I should be prepared to send the case to be tried by proof before the Lord Ordinary, but I fear we are not free in the matter, but are tied down by the statute. The pursuer is entitled to have her case tried by a jury unless special cause can be shown to the contrary. It has been urged that the eloquence of counsel appealing to the feelings of a jury often results in a miscarriage of justice. But the result of such an argument, if given effect to, is, that no cases of this kind should ever go before a jury. But the statute says exactly the opposite. It was further urged that the position in life of these parties rendered such a mode of trial undesirable, but I can see nothing in this record to exclude the pursuer from the right which the statute gives her.

The Court recalled the interlocutor and remitted to the Lord Ordinary to proceed with the adjustment of issues and the trial of the cause by jury.