Scottish Court of Session Decisions

In the present case the impression produced upon the mind of the juryman who visited the road, on the merits of the historical question of prescriptive possession, is far too remote to approach a cause essential to the justice of the case.

Lord Adam—I agree. The only ground upon which we are asked to sustain this rule is that circumstances have occurred which make it essential to the justice of the case that a new trial should be granted. In Sutherland the facts which were considered to make this essential were that one of the jurymen made inquiries at his own hand, went down to study the working of the pit,' which he went over with the defenders manager, and made up his mind after doing this, besides impressing the other jurymen. It was said by Mr Salvesen on that case that the assistance of the defenders' manager may have led to a verdict being given in their favour, but if this were a good ground for granting a new trial, it would be equally good had the verdict been the other way, and accordingly that case has no bearing upon the present question, which I agree with your Lordship is quite different. We are told in point of fact that a juryman visited the road in question and walked over it, and that he informed some of the other jurymen he had seen the road in dispute. But I think he was in no different position with respect to the road than if he had from local residence been familiar with it. I cannot see that his having walked there makes it essential to have a new trial.

Lord M'Laren—In considering this question it must not be left out of view that we have nothing before us but the affidavit of a juryman, and that the evidence is not given under the test of cross-examination, and is therefore not of the same value as evidence given in the usual way. But the parties are agreed in treating the affidavit as substantially representing the facts upon which the objection is founded. Now, the statute under which jury trial was instituted in Scotland, while giving the right to apply for a new trial on certain definite specified grounds, also gives a right with reference to other matters which are not defined except as being “essential to the justice of the case,” and this is the criterion by which this application must be tried. The cases which have been held to fall within the general words of the statute have been cases arising out of the misconduct of jurymen either in communicating privately with the parties or instituting an independent inquiry of their own. Of the first class I think there has only been one instance, so far as the records of the Courts gives us information. The cases of the second class are also very rare, and I for one do not entertain the slightest apprehension that anything we decide will have any effect in causing laxity on the part of jurors regarding their duties in the trial of cases. It is quite true that jurymen and judges are under the necessity of looking at the external facts of a case through the spectacles furnished to them by counsel and witnesses, and however different and distorted may be the images thus produced, those who are to decide the case are not entitled to go and use their eyes and look at the facts for themselves. The rule may sometimes be inconvenient, but the obvious reason and advantage of it is that a juryman going to look at the thing for himself might be led into serious error by confounding what he sees with the state of facts which existed when the cause of action arose.

Now, the question here is, whether the juryman has violated the rule of good conduct by making inquiries for himself independently of the evidence laid before the Court. I think the facts do not amount to a case of that kind. All that he did was to walk along the road in company with a person who is not said to have had any interest in the case, and he could learn nothing from his inspection of the road except its geographical position, which he already knew from the plans produced and explained in Court. I do not commend the action of the juryman in going to the road on purpose to look at it. He ought to have known that it was better to avoid doing anything that might give rise to doubts about the verdict. But it is another thing to say that he learned something which prejudiced his mind in giving the verdict, and I am not of opinion that he did so. I therefore agree that the rule should be discharged.

Lord Kinnear—I am of the same opinion. I do not think it essential to the justice of this case that it should be tried over again by a jury not one of whom has seen the road in question, for that is the real ground upon which we are asked to grant a new trial. I do not think that the circumstance of this juryman having walked over the road is material to show that he considered the question, which he was bound by his oath to try on the evidence, subject to prejudice derived from separate inquiries of his own. He made no inquiries, according to the evidence he merely looked at the road, and by doing so he only acquired the information which he might have already possessed had he known the road beforehand. Nobody says that it would be a sufficient ground for upsetting the verdict if he had had this previous knowledge, or if he had acquired the same amount of knowledge by the study of a map in his own possession.

The case of Sutherland appears to me to be distinguished from the present case, for the reasons clearly stated by Mr Salvesen when commenting on that decision. The only distinction, he said, is the difference of circumstances. That is true, but I think that circumstances make all the difference, for the reasons which have been explained by your Lordships.

Lord Kyllachy—I concur, and desire only to add, that having tried the case and

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