Scottish Court of Session Decisions

On 8th June 1886 the Scottish Rights-of-Way and Recreation Society (Limited) and Thomas Duncan and James Farquharson raised an action of declarator and interdict against Duncan Macpherson of Glen Doll. The action was for declarator that there was a public right-of-way over a certain road passing through the defender's land of the nature and in the direction stated in the previous report ( supra, p. 13). Defences were lodged. On 20th July 1886 the Lord Ordinary ( Lord Kinnear) issued the following interlocutor:—“The Lord Ordinary on the motion of both parties, Appoints the issues in this case to be tried by a jury within the Courtroom of the High Court of Justiciary upon Tuesday the 23d day of November next, at half-past ten o'clock forenoon,” &c.

The defender reclaimed, and on 23d October 1886 the Court pronounced this judgment—“Recal the said interlocutor: Appoint the issues in the cause to be tried before the Lord Ordinary without a jury, and remit the cause to his Lordship with instructions to proceed therein accordingly.”

Thereafter the pursuers presented a petition to the Court for leave to appeal to the House of Lords against this judgment. The Act 48 Geo. III. cap. 151, sec. 15, enacts—“That hereafter no appeal to the House of Lords shall be allowed from interlocutory judgments, but such appeals shall be allowed only from judgments or decrees on the whole merits of the cause, except with the leave of the Division of Judges pronouncing such interlocutory judgments, or except in cases where there is a difference of opinion among the Judges of the said Division.”

The petitioners stated that the question was one of public right depending on inquiry into facts, that they were advised that by the inveterate practice of the Court it ought to be tried by jury, and that they being charged with the public interest in that and similar cases had a material interest in having it so tried, rather than by proof and subsequent reclaiming-note, which would be productive of great expense. They also stated that they were advised that the said interlocutor was incompetent, as by the Court of Session Act 1850 (13 and 14 Vict. cap. 36), sec. 46, the trial of a cause on issues before a Judge without a jury could

Page: 60↓

proceed only by consent of parties, which had not here been obtained. But in respect that this was an interlocutory judgment, and none of the Judges had formally intimated dissent, leave to appeal was necessary.

Argued for the petitioners—The question raised by the case was one of public right depending solely upon an inquiry into facts, and the usual way of trying such a case was on issues before a Lord Ordinary and a jury. There was greatly increased cost and uncertainty in an inquiry by proof before a Lord Ordinary compared with the sharp decision given by a jury. As there might be other cases in which the Society would have to act in the public interest it would be well to have the proper course of trial finally sanctioned.

Counsel for the defender was not called on.