Scottish Court of Session Decisions

Sequel of the case reported Ante, XIV., p. 378 and 681, which see. In a multiplepoinding, raised in name of Sir James Boswell of Auchinleck, Baronet, a question arose between certain claimants, Matthew Montgomerie and Others, who were creditors of the late Sir Alexander Boswell, whether his son, Sir James, had incurred a general representation, by intromitting with the moveables, and unentailed heritage of Sir Alexander. The Lord Ordinary pronounced an interlocutor, which, inter alia, remitted the case to the Jury Roll. That interlocutor was, under a reclaiming note, recalled, as premature, and a remit was made to his Lordship to grant diligence, or allow a proof or commission. Under the remit a great mass of documentary evidence was recovered, but the creditors intimated that they were also to lead parole proof, and insisted on their right to have the question of fact, whether Sir James had incurred a general representation, tried before a Jury. Sir James opposed this on the same grounds as formerly, alleging it to be a question which, in the circumstances, was not fitted for the tribunal of a Jury.

The Lord Ordinary pronounced this interlocutor:—“Having heard parties' procurators, and considered the closed record, in respect that the pursuer does not confine himself to the written evidence now in process, but demands a farther proof by witnesses, and that the defender does not maintain that the said written evidence is such as to exclude parole proof, finds that farther investigation is necessary; and finds that no sufficient cause is assigned by the defender, for departing from the general rule for ascertaining disputed questions of fact, and therefore remits the case to the Jury Roll.” ^*

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^* “ Note.—The question between the parties is truly a question of fact, viz., whether or not Sir James Boswell, the defender in the action of forthcoming, and the nominal raiser in the multiplepoinding, took possession of the unentailed property of his late father, Sir Alexander Boswell, and intromitted with his personal effects. Under the diligence originally granted, and that which has been since issued agreeably to the remit from the Court, a vast mass of papers, consisting of letters, vouchers, and accounts, has been recovered. But on the one hand, Mr Montgomerie, who is truly the pursuer, states, that he does not confine himself to that written evidence, and proposes to fortify it by the examination of witnesses; on the other, it is not contended by Sir James Boswell that the documents are conclusive of his defence, and are such as to exclude parole proof. There being no doubt, then, that some farther investigation is necessary, the only point is, whether it shall proceed by Jury trial, or by proof on commission.

“In considering this point, it must be kept in view, in the first place, that this is not a case in which both parties concur in resorting to a proof by commission; and secondly, that the Jury trial is demanded by the pursuer, who manifestly has a legitimate interest to insist in a course of investigation, peremptory in its forms and conclusive in its results, in preference to that required by the defender, which in practice admits of being indefinitely protracted, while the conclusion of it only forms the opening of a litigation on its import, competent in every successive tribunal, from that of the Lord Ordinary to the Court of last resort.

“In these circumstances, the Lord Ordinary thinks that nothing short of a conviction that the case was absolutely unfit for the consideration of a Jury, would warrant him to depart from the ordinary course; and after bearing the matter argued, he remains of the opinion that there is no sufficient ground for refusing the pursuer's motion.

“In the first place, though there are now recovered and put into process, on the part of the pursuer, an enormous collection of papers, which from their nature might perhaps afford the materials of a very intricate accounting, that does not appear to be the true character of the enquiry. There is no question here as to the amount of the intromissions with which the pursuer is charged, and no pecuniary result, in the proper sense of the term, is sought to be inferred from these papers by the pursuer. The only point which he seeks to establish is, that the defender took possession of the unentailed estate and personal property of the late Sir Alexander Boswell. The Lord Ordinary understands that these documents, or part of them, are to be adduced in support of that averment, and for any tiling yet seen, the use to be made of those materials, may be such as to render a very limited selection of them necessary; and the combined investigation of them, and of the parole evidence of the factors, managers, or other witnesses examined in relation to them, may turn out to be a much more convenient and satisfactory procedure for reaching the truth, than, a proof by commission.

“Secondly, The demand of the pursuer is unquestionably agreeable to the general rule sanctioned by statute for the investigation of disputed matters of fact; and it would seem inexpedient and improper to adopt a different course, in opposition to that demand, founded on what at best must be but a presumptive and hypothetical view of his case. The Lord Ordinary is not entitled to anticipate, and the pursuer cannot be called upon at present prospectively to open, the kind of case he is to submit to the Jury; and when the proper time comes for his doing so, and if it shall turn out from the statement for the pursuer that it is utterly unsuited for the consideration and determination of a Jury, experience has shown that there are practically the means of obliging the pursuer to withdraw his case from that tribunal, and to adopt a course of investigation better fitted to do justice between the parties.

“On these grounds the Lord Ordinary does not conceive himself warranted in refusing the pursuer's motion for a remit to the Jury Roll.”

Sir James reclaimed. The Dean of Faculty, appearing for him, was stopped from entering on the merits of the Reclaiming Note.