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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Duke of Buccleuch v. Cowan & Others [1866] ScotLR 3_61_1 (28 November 1866)
URL: http://www.bailii.org/scot/cases/ScotCS/1866/03SLR0061_1.html
Cite as: [1866] ScotLR 3_61_1, [1866] SLR 3_61_1

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SCOTTISH_SLR_Court_of_Session

Page: 61↓

Court of Session Inner House Second Division

Lord Justice-Clerk

3 SLR 61_1

Duke of Buccleuch

v.

Cowan & Others

( ante, vol. ii. p. 253).


Subject_1Jury Trial—Special Jury—New Trial
Subject_2Bill of Exceptions
Subject_355 Geo. III., c. 42, secs. 6 and 7.
Facts:

Held that the verdict of a jury could only be set aside in the manner by sees. 6 and 7 of the Act 55 Geo. III., c. 42, and that any other mode of doing so was incompetent. A motion that the proceedings at the trial should be set aside, in respect the jury had not been properly struck, and the presiding judge had declined to separate the trials of the defenders' cases, held on that ground irregular and not written upon.

Headnote:

In this case, which was tried at the last jury sittings and resulted in a verdict for the pursuers, the defenders to-day moved the Court to quash the whole proceedings at the trial, resting the motion on the ground of legal right, and not as an appeal to the discretion of the Court. At the trial the defenders objected that the special jury had been struck on the principle of allowing them collectively to strike off one juryman for every juryman

Page: 62↓

struck off by the pursuers, whereas each defender was entitled individually to that right. The Judge presiding at the trial overruled the objection, and further held that it could not he made the subject of a bill of exceptions, which was a statutory remedy not extending to such a case. It was also moved at the trial on behalf of the defenders, that each case should be tried separately, each being a distinct case, but this motion was also overruled by the Judge. The defenders now contended that the proceedings should be set aside on this double ground.

Solicitor-General and Shand (with them Lord Advocate), for the pursuers, objected to the competency of the motion, and contended that any questions as to the constitution of the jury ought to be brought under the notice of the Court by the defenders in their motion for a new trial; that, and a bill of exceptions, being the only competent methods of impugning a verdict. On the merits, they contended, on the authority of Wallace, 14 S. 720, and Dobie, 23 D. 1139, that the jury had been properly struck.

D. F. Moncreiff and Young (with Them Clark, Gifford, A. Moncrieff, and Asher) replied for the defenders.

At advising,

 Judgment:

Lord Justice-Clerk—The Court are of opinion that this motion is incompetent and cannot be entertained. The whole procedure in any cause appropriated to jury trial, and in every cause in which issues are sent to be tried by a jury, from the time when the issues are adjusted till the verdict is applied, is previously regulated by statute and Act of Sederunt. After a verdict is returned by the jury, there is no form or mode in which the Court of Session, in either division thereof, can set aside a verdict or order a new trial, except such as are prescribed by statute and regulated by Act of Sederunt. The Act 55 Geo. III., cap. 42, sec. 6 and 7, regulates this matter, and there is no other way in which a party can interpose between the returning of a verdict by the jury and its being entered up and applied by the Court. Wherever the complaint of a party against the verdict is directed against the opinion or direction of the presiding Judge, as to competency of evidence or other matter of law arising at the trial, it may be brought, under the authority of the 7th section, in the form of a bill of exceptions, and the judgment of the Court on the exceptions is subject to appeal to the House of Lords. Every other complaint, as well as objections to the directions of the Judge, having for its object the setting aside of the verdict and ordering a new trial, must be in the form of a motion for a new trial, in the manner and subject to the conditions prescribed by the 6th section; and the judgment of the Court on this application is not subject to review by appeal to the House of Lords. The defenders who make this motion have already availed themselves of the remedies prescribed by both sections of the statute by procuring the signature of the Judge to a bill of exceptions, and by giving notice in due time of a motion for a new trial; and on the bill of exceptions, and also on the motion for a new trial, the Court are ready to hear the parties. But the present motion is an attempt to supersede altogether the statutory remedies to which the parties have already resorted, and substitute therefor, or super add thereto, another remedy unauthorised by statute, and altogether unknown in practice from the introduction of jury trial in civil causes in the year 1815 to the present day. It is said that this is the same remedy which is known in England as a venire de novo. If it be so, a venire de novo is not one of the remedies given by the statutes introducing and regulating jury trial in civil causes in Scotland. It is further said that if this motion is not entertained there will be a serious legal wrong without a remedy. We are clear that this is not so; for, as already said, every competent objection that can be stated against a verdict may be brought before the Court under one or other of the 6th and 7th sections of the 55th Geo. III., cap. 42. For these reasons we consider this motion to be altogether unauthorised, and that it would be irregular to pronounce any deliverance upon it.

This was the opinion of the Court.

 Counsel:

Agents for Pursuers— J. & H. G. Gibson, W.S.

Agents for Defenders— White-Millar & Robson, S.S.C.

 1866

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