Scottish Court of Session Decisions

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Cite as: [1892] SLR 29_445_1, [1892] ScotLR 29_445_1

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SCOTTISH_SLR_Court_of_Session

Page: 445↓

Court of Session Inner House First Division.

[Sheriff of Forfarshire.

Tuesday, March 8. 1892.

29 SLR 445_1

Crabb

v.

Fraser.

Subject_1Process
Subject_2Appeal
Subject_3Jury Cause
Subject_4Judicature Act 1825 (6 Geo. IV. cap. 120), sec. 40.
Facts:

An action of damages for assault having been appealed by the pursuer under the 40th section of the Judicature Act for jury trial, the defender moved the Court to remit the case back to the Sheriff for proof. The Court held that the case should be dealt with as if it had originated in the Court of Session, and remitted it to a Lord Ordinary for trial by jury.

Headnote:

Mrs Crabb raised an action in the Sheriff Court at Dundee as curator and administrator-in-law for her pupil son William Crabb, against George Fraser for payment of £150 in name of damages for an assault committed by defender on her said pupil son.

The pursuer averred that her son having taken a turnip from the defender's garden, the defender had set his dog upon him, with the result that the dog had bitten him, and that the defender had also struck him and drenched him with liquid manure.

On 29th January 1892 the Sheriff-Substitute ( , ) allowed a proof.

The pursuer appealed to the Court of Session for jury trial under the 40th section of the Judicature Act, and having lodged issues she moved the Court to approve of the same and to remit the case to a Lord Ordinary for trial by jury. The defender opposed and moved the Court to send the case back to the Sheriff for proof.

The pursuer argued—The action having been removed to the Court of Session for trial there, it should be treated as if it had originated in that Court. It belonged to a class of actions appropriated for jury trial, and unless parties consented or cause were shown, it should be remitted for trial by jury— Cochrane v. Ewing, July 20, 1883, 10 R. 1279; Hume v. Young, Trotter, & Company, January 19, 1875, 2 R. 338; M'Avoy v. Young's Paraffin Company, November 5,
Page: 446↓
1881, 9 R. 100; Trotter v. Happer, November 24, 1888, 16 R. 141.

The defender argued—It was quite possible to appeal under the 40th section of the Judicature Act causes which were not among those appropriated for jury trial, and there was no obligation on the Court to send causes appealed under that section to jury trial. The Court did not always send causes of the appropriated kinds to trial by jury, as had been exemplified in actions for nuisance— White, &c. v. Dixon, July 9, 1875, 2 R. 904. Hume and Trotter were not cases under the 40th section of the Judicature Act. The present case was from its nature unsuited for the expensive process of trial by jury. The amount likely to be awarded would be very small, as the pursuer admitted that her son had been versans in illicito.

At advising—

Judgment:

Lord President— Prima facie, the proposal of the defender and respondent, that this action should be tried in the Sheriff Court, cannot be said to be unfit or unreasonable. But we must determine upon it with a due regard to the 40th section of the Judicature Act, and so as to give fair play to the system thereby established. This action is now in the Court of Session, and the pursuer, who has taken the appeal for the purpose of jury trial, claims to have her case so disposed of. Now, while the power of the Court to send back for trial in the Sheriff Court cases appealed under this section cannot be disputed, this power has been exercised in view of the category to which the case under consideration belonged. This is an action of damages for assault, and if it had originated in the Court of Session it would for that reason unquestionably have gone to a jury. As it is now here, under this statutory power of appeal, I think we must proceed upon this same criterion of what is to be the mode of trial. We could only adopt the opposite course if we were to form some conjecture as to the substantiality of the pursuer's case, in each action of damages for assault, and send back for trial before the Sheriff those cases which, prima facie, did not look well.

There is an obvious inconvenience in such a selection having to be made by the Court which might ultimately have to review the merits of the remitted cases; and it appears to me that the sound rule, and that most conformable to the statute as well as to the decisions, is to send for jury trial those cases which by the legal quality of their ground of action would be designated for jury trial if they had originated in the Court of Session. In all cases, of course, the rule is subject to the statutory condition if special cause be not shown. But the class of assault is one in which this qualification requires to be stated, rather as matter of theory than as of appreciable practical importance.

The pursuer and appellant having moved us to approve the issues proposed by her, I think our proper course is, on her motion, to do so.

Lords Adam, M'Laren, and Kinnear concurred.

The Court approved of the issues proposed by the pursuer, and remitted the case to a Lord Ordinary for trial by jury.

Counsel:

Counsel for the Pursuer— Guy. Agents— Wishart & Macnaughton, W.S.

Counsel for the Defender— Kennedy. Agents— Macpherson & Mackay, W.S.
1892