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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mackintosh and Others v. Ross and Others (Shandwick Succession) [1875] ScotLR 13_135 (7 December 1875) URL: http://www.bailii.org/scot/cases/ScotCS/1875/13SLR0135.html Cite as: [1875] SLR 13_135, [1875] ScotLR 13_135 |
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Page: 135↓
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Held that a jury was a proper tribunal for trying a question of pedigree in which the evidence would be chiefly documentary.
This case, which was an appeal in conjoined petitions for service from the Sheriff of Chancery, in terms of 31 and 32 Vict. cap. 101, sec. 41, came up on a report by Lord Curriehill. On May 30, 1873, the Court pronounced an interlocutor dismissing the petition of one of the parties, and appointing the others to lodge issues, and by a subsequent interlocutor, on December 30, 1873, the issues were approved of, and the case was remitted to the Lord Ordinary. One of the petitioners, John Ross Duncan, now sought to have the case tried by the Lord Ordinary without a jury, and his Lordship reported the matter to the First Division with a view to their reconsidering it.
At advising—
We did not in express terms find that the cause was one which should be tried by a jury, but we certainly formed an opinion how it ought to be tried, and I see I said that it was a case just like other cases of pedigree, and further, that it was a matter for the discretion of the Court, and that the practice had been to send such cases to a jury. The other Judges concurred, and Lord Deas observed that the great advantage of trial by jury is that the verdict fixes the matter of fact, which otherwise would be open to controversy in this Court and in the House of Lords. Now, it is quite open to us to reconsider the view which we took then; and if I were now satisfied that the case differed from other pedigree cases, I should be ready to change my opinion, but I cannot see that any such difference exists. It is necessary to observe the position of the parties under this action. They go before the Sheriff of Chancery, and his proceedings on the fact have the same effect as the verdict of a jury. But parties who go before the Sheriff of Chancery may not desire that the question of fact should be settled by him, but by a jury, and they are entitled, under sec. 41 of the Act of 1868, to bring their competition here for that purpose, and we are directed to consider it. I think the party who appeals under sec. 41 has a certain right to be heard, and the appellant is standing on that right, and demanding to have the case tried in the statutory way. It is said, no doubt, that there is a great deal of documentary evidence, but I am by no means sure that that makes the case an unfit one to be tried by a jury. If the case is one depending to a great extent on correspondence, I do' not see that a jury under the discretion of a Judge is not a proper tribunal to deal with that. Questions may arise as to the genuineness of documents, and surely that is a jury question, and one which may often arise. We know also that tombstones and such like pieces of evidence require a great deal of investigation, and require that every-day commonsense which is the best characteristic of a jury.
The other Judges concurred.
Counsel for J. R. Duncan— Fraser. Agent— W. H. Sands, W.S.
Counsel for Mr Mackintosh— Lancaster. Agents— H. & A. Inglis, W.S.
