Scottish Court of Session Decisions

Sequel of the case reported ante, XIV. 378 and 681; and supra, p. 395; which see. The Lord Ordinary had remitted the cause to the jury roll, and, a reclaiming note against that judgment was found incompetent (supra, p. 395). The cause was therefore sent to the jury roll, and Sir James Boswell then moved that it should be re-transmitted to the ordinary roll, as being unfitted for investigation before a jury, in respect, inter alia, that the question at issue, which was his representation of his deceased father, depended on the investigation of a large mass of documentary evidence produced, and involved an intricate accounting. Sir James did not maintain that the written evidence was such as to exclude parole proof; and the motion was opposed by Montgomerie and others, who stated that they meant to lead such proof, and contended that it was at least premature to say whether jury trial was inapplicable to the ease or not, as they were not yet bound to open the case, which they should lay before the jury. They denied that any intricate accounting was involved; and, being satisfied that they could bring their case, on the fact of Sir James Boswell's representation, clearly and satisfactorily before a jury, and would not have occasion to use more than a mere selection from the documents in process, besides their parole testimony, they had an interest and a right to insist on going before that tribunal, so as to have the question at issue conclusively settled.

The Lord Ordinary pronounced this interlocutor:—“Having heard parties' procurators, on the motion of the defender to retransmit the case to the Ordinary Roll, on the ground that it involves matters which cannot be satisfactorily investigated by a Jury,—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 further 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 by the verdict of a Jury—and therefore refuses the motion.” ^*

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* “ Note.—As by the former interlocutor of the 5th of December, 1837, the Lord Ordinary did not merely remit the case to the Jury Roll, subject to the contingency of being retransmitted, but found expressly, after an argument on the point, that it was fit for the consideration of a Jury, he considered that the interlocutor might be competently brought under review, and indeed he so expressed it, for the very purpose of enabling the defender to take the opinion of the Court, as had been done before. But as that procedure was found incompetent, and as the question has now been again raised in the form of motion to retransmit to the Ordinary Roll, he sees no reason to alter his former opinion; and therefore repeats the interlocutor mutatis mutandis the reasons given in his former note.”

Sir James Boswell reclaimed, and prayed the Court to alter and “remit to the Lord Ordinary to retransmit the cause to the Ordinary Roll, and thereafter grant a commission for a proof, in so far as the testimony of witnesses may be offered or required by either party.”

The Court were of opinion that the nature of the case was such as to render it inexpedient that it should be sent for investigation before a Jury; and as it was not imperative to do so, their Lordships altered the interlocutor of the Lord Ordinary, and remitted to his Lordship to allow a proof on commission as craved. The Court were understood to be influenced chiefly by the mass of documentary evidence, said to consist of several hundreds of writs which had been put into process; and by the consideration that questions as to the import and effect of these, in accounting and otherwise, would arise, which could not be satisfactorily investigated by a Jury, as had been evinced in many similar cases, where, after a trial before the Jury had begun, it had been found necessary to desist from proceeding with it, and to withdraw the case from the Jury.