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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Mackenzie v. Ross. [1818] ScotJCR 2_Murray_11 (11 September 1818) URL: http://www.bailii.org/scot/cases/ScotJCR/1818/2_Murray_11.html Cite as: [1818] ScotJCR 2_Murray_11 |
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Page: 11↓
(1818) 2 Murray 11
CASES TRIED IN THE JURY COURT.
INVERNESS.
No. 2.
PRESENT,
Damages claimed for using a road.
An action of molestation, declarator, and damages, on account of the defender having used a road through the property of the pursuer, and repeatedly pulled down a march-dike built across it.
Defence.—A denial of having illegally broken down the march-dike, or used any road through the property, to which he had not a just right by his titles and immemorial possession.
“Whether the road leading through the pursuer's property from Taynauld to Rosshill-House, the property of the defender, was first made by the defender's father breaking through the march-dike that separates
Page: 12↓
Whether the said road has been used as a public road from time immemorial?
Damages claimed by the pursuer in the summons, L.2000.”
In this case an order was obtained for a view. The agents could not agree on the viewers; and in that event, 55. George III. c. 42, § 29, provides, that “six or more of the first twelve on the list of Jurors returned by the Sheriff,” shall have the view. The subject in dispute being situate in the county of Ross, the Clerk named the first six on the list returned by the Sheriff of that county.
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When the case was called on for trial,
Viewers to be taken from the county where the subject in dispute is situate.
Russel's Form of Pro. p. 40.
Moncreiff, for the pursuer, objected.—A party in general has a right to challenge the Jurymen peremptorily, and for cause. But in the case of a view, he is excluded from this privilege as to six of the Jury, by the 29th section of the Act. The agent for the pursuer objected to the three named for the defender; and therefore the duty devolved on the Clerk, who named these three, along with others, to have the view.
The provision is, that six out of the first twelve must be named. The list for Inverness was first in the hands of the Clerk, and also first in the list made out by him, and was first read in Court. There are some of the viewers to whom we do not object; and as there is a provision that the trial may proceed, though the whole named have not had a view; those who are objected to may be omitted, and their place supplied by ballot.
Cockburn, for the defender.—This is saying the case cannot be tried fairly, or even intelligibly.
No protest was taken against the nomination by the Clerk; on the contrary, the pursuer was named his own shower, to point
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There is no ground in law for this objection, as the Clerk is not directed to make a list; nor is there any provision in the statute as to how the counties are to be arranged. It is the principle of trial by a Jury, that the Jurors ought to be from the vicinage; and, indeed, there is no method by which gentlemen could be sent from Inverness-shire, for the purpose of taking a view in Ross-shire. The case is not provided for in the Act, of more than one Sheriff: it therefore was a matter of discretion with the Clerk, which county should be placed first. A view has been had; and if the viewers are rejected, we must move to delay the trial, as it cannot properly be tried without them. The safest way is to allow the trial to proceed, and this discussion can go on upon an application for a new trial; but if we are forced to a trial without the viewers, the whole expence may be incurred to no purpose.
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Moncreiff.—It is admitted that this case is not provided for. It is six out of the first twelve, which shows there must be a list, consisting of at least twelve; and there are only eight from Ross. It is the universal practice, and seems sanctioned by the 20th section of the Act, to follow the example of the Justiciary Court, and to place first, the Jurymen of the county in which the circuit town is situated. The other party must show a positive rule, or the trial cannot proceed on this view. It is a fallacy to say the Sheriff cannot send the Jurors to another county: he may direct them to go, and there is no compulsitor whether the place is situate in his own, or another county. A fine is the only compulsitor to make them attend the Circuit; and there is no fine in the case of a view.
I must consider, 1 st, The enactment of the
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The statute does not contemplate the precise case which has occurred: The 29th section proceeds first on the supposition that parties would agree; but if they differ, then the enactment is, that six or more of the first twelve on the list of Jurors returned by the Sheriff, not Sheriffs, shall have the view. It contemplates only one return, and applies to the list made up by the Sheriff, not to one made by the Clerk. But there are returns by four Sheriffs, and the Clerk may arrange these as he chooses. The Clerk puts this question to himself, Shall I issue a precept to the Sheriff of Inverness which he cannot execute, and may therefore disobey? Shall I bring this Court into the situation of issuing a precept which is null? He thinks this improper, and therefore issues the precept to the Sheriff of Ross, who is bound to obey it, and the gentlemen are bound to attend. In doing so, I am of opinion the Clerk did right. Besides, when we are all met here—when so much expence has been incurred—when a view has been had, at which the pursuer was present, and acted as a shower—when a view is necessary from the nature of the case—and
Page: 17↓
If there is any special objection to any of the viewers, of course it may be stated as a reason why he should not be on the Jury.
To this decision a Bill of Exception was tendered. And as one of the viewers had been appointed tutor to the defender, Mr Cockburn consented that he should not be put on the Jury. *
Proof on Commission, in a cause against the father of the defender, relative to the same subject of dispute, received as evidence after the death of the witnesses.
It was stated for the pursuer, that formerly there had been a question as to this road, with the father of the defender; and after discussion, the depositions of some of the witnesses who were proved to be dead, were read.
Matheson opened the case, and stated the facts. He would prove that there was no road in the situation contended for, till the late Mr Ross made it in 1796, when he improperly
_________________ Footnote _________________ * See
post, pp. 20 & 28.
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Cockburn, on the other hand, said he would prove there had always been a road in the direction contended for; and the Jury must take this positive, in opposition to the negative evidence which had been produced.
Moncreiff.—The defender has no right to this road by his titles, and must therefore prove immemorial possession. To this extent he is the pursuer, and bound to prove his case. He has only proved that some persons broke down the fence, or went over it, which is not uncommon, where there is no road.
In the Court of Session, the averments were so opposite, that they sent this issue to
Page: 19↓
There is much important proof on both sides, and the Jury must consider and come to a conclusion as to which is right. It is my duty to state the important points, and I shall do so without encroaching upon the province of the Jury, by even hinting an opinion. (His Lordship then read a considerable part of the evidence on each side.) The result of the evidence is, that the witnesses for the pursuer state that there was no track, and no slap. Those for the defender agree that there was a road and a slap.
A general finding for the pursuer or defender is sufficient; but it is quite competent to find specially the facts you consider proved.
“Verdict for the defender.”
Page: 20↓
Counsel:
Moncreiff and
Matheson for the Pursuer.
Cockburn and
Maitland for the Defender.
Solicitors: (Agents, James Pedie, w. s. and Joseph Gordon, w. s.)
Direction by a Judge in a matter preliminary to a Trial, not a subject for a Bill of Exceptions.
14 th June 1819.—A motion was made (in presence of the three Lords Commissioners), that Lord Pitmilly should be authorised to sign the Bill of Exception in the above case.
Lord Chief Commissioner.—We must refuse this application, as it relates to a matter preliminary to a trial. If granted, it would be set aside in the House of Lords for irregularity, Bill of Exceptions not being the remedy for such a proceeding. It is like an objection to the notice or summons of a witness, which may occasion what is termed a mis-trial; the remedy for which is not a Bill of Exceptions, but an application for a new trial.