Trustees of John Marshall; and Trustees of Hugh Earl of Eglinton - Attorney General (Campbell) v. James Kerr, Trustee on the sequestrated estate of William Taylor - Sir Wm. Follett [1837] UKHL 3

UKHL
Trustees of John Marshall; and Trustees of Hugh Earl of Eglinton - Attorney General (Campbell) v. James Kerr, Trustee on the sequestrated estate of William Taylor - Sir Wm. Follett
[1837] UKHL 3 · 1837-06-19
Trustees of John Marshall ; and Trustees of Hugh Earl of Eglinton , Appellants.—Attorney General (Campbell) v. James Kerr , Trustee on the sequestrated estate of William Taylor , Respondent.—Sir Wm. Follett

[ 19th June 1837 .] *

Ld. Moncreiff .

Subject_ Process — Appeal. —

An appeal is incompetent against an interlocutor of the Court of Session finding that in the cases enumerated in the acts of parliament regarding trial by jury in civil causes, when the conclusion is for damages, the Court has no power to take proof by commission, on remit, or in presentia, but must remit all such cases to be tried by jury.Observed (obiter), that the judgment of the Court of Session was well founded.The respondent raised an action before the Court of Session against the appellants, alleging that, by their reckless and negligent conduct in working certain coal fields belonging to them, they had caused the water of the river Garnock to descend into and entirely destroy certain coal workings belonging to the respondent,

Footnote

* This case was omitted to be reported in the proper order of its date.

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Lord President .—“I have carefully considered the acts of parliament referred to by the parties, and have formed a very decided opinion as to the question now before us. In the first place, it appears to me to be perfectly plain, that the object and intention of the legislature in these enactments was, as far as possible, to put an end to the old procedure of taking proof on commission. This method of procedure was

Footnote

1 These opinions were revised by their Lordships and laid before the House of Lords.

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I have formed my opinion upon two clauses in the act of 1819. I do not go further. The first of these is the 12th section of the act. In this section, the words ‘beneficially applicable’ are unfortunate. It is a loose phrase, and capable of many constructions. It may mean beneficially applicable in regard to the matter at issue, or in regard to the mode of proof, or in regard to the time that may be occupied in ascertaining the facts. These are different senses in which the phrase may be understood. But I cannot interpret it as having reference to the mere question of difficulty, as, if that were its meaning, you might have an argument raised in every case, as to whether or not it was one which would be attended by difficulty if tried by a jury. But, besides, I cannot take this clause by itself; I must consider it in connexion with the 13th section. By this section it is provided that the powers of taking proof on commission shall remain to the Court, “save and except in the cases concluding for damages herein-before enumerated.” This is just equivalent to saying, that in such cases it shall not be competent to take proof on commission; for wherever a general power is conferred under an express exception, this must be held to mean that, in regard to

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Lord Justice Clerk .—“In regard to the question of power, and in reference to the acts of parliament, which I have carefully considered, I am sorry to say that I have been led to form a very decided opinion in entire conformity with that now expressed by your Lordship. I shall now state the grounds upon which I rest that opinion. I agree in the general observation made by your Lordship, as to the great object which the legislature had in view in framing

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There is another section in the same act, which seems to me to be of considerable importance to the present question, although it has not been adverted to by the counsel on either side, —I mean the 33d section, which contains several important provisions. It relates to the power of the Jury Court to remit cases to the Court of Session in various circumstances, and concludes with these words:—

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“And if there shall remain matter of fact to be ascertained between the parties, the said matter shall be tried by jury.”
It seems here clearly contemplated by the legislature, that in all those cases enumerated as peculiarly appropriate to the Jury Court, and in which any question of law or relevancy had occurred to justify a remit to the Court of Session, that still, in such cases where any matter of fact remained disputed by the parties, it should not be competent to the Court of Session to allow a proof on commission of such matter of fact, or to do any thing but to remit the case to the Jury Court, there to be disposed of by jury trial. I do think that the provisions of this section are quite in consistency with the construction which I hold to be the fair construction of the act 1819.If a door is to be opened for the consideration of the applicability of trial by jury to each of those cases so familiarly known as jury cases, if parties are to be allowed in every case of this description to enter upon a discussion as to whether, in its peculiar circumstances, it is one to which jury trial is or is not beneficially applicable, it is obvious that the course of justice would be constantly embarrassed by needless discussions. We know that there are many cases in which trial by jury is attended with great trouble, not only to the parties, but also to the counsel, judges, and jury; and, if a door is to be again opened to the admission of the question in each of these, whether it will be most beneficially disposed of by jury trial, or by taking proof on commission, it may be seen very clearly what will be the result—the matter will just be thrown as loose as ever it was, and in every instance it will fall for

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Lord Gillies .—“I am sorry to say that I have arrived at a totally different conclusion; and I will state the grounds upon which I have formed my opinion. Ever since jury trial was introduced into Scotland, or at least almost ever since, certain cases have been enumerated as peculiarly fitted for that mode of trial. They are well known by the name of the enumerated cases, and the others go by the name of the non-enumerated cases. The question before us is, whether we have the power, in any of the enumerated cases, and under any circumstances, of sending them back from the Jury Court to the Court of Session as a Court more fitted for their disposal. I differ totally from the assertion, that to all the cases of this class trial by jury is beneficially applicable. During the short period in which the Jury Court has existed in Scotland many cases have occured belonging to this class, and which were so ill adapted for trial by jury, that we have found it expedient to urge the parties to settle them otherwise. But I need not say any thing to prove the frequent occurrence of such cases; for the Dean of Faculty himself informed us, that in England such cases frequently occur, and that there the evil is so severely felt, of being compelled to try them by jury, that the Judges have endeavoured to obtain an act of parliament to invest them with that very power which it is now questioned whether we possess. But the point we are now to settle is not whether a bill ought to be prepared to give us such a power, but whether the acts which are passed do not confer upon us the very power which the Judges of England

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The question then is, whether in such cases we are excluded by the statutes from trying them otherwise than by a jury. It has been said that the power of assessing damages shows that they are exclusively appropriate to trial by jury. It is true that the jury by these enactments possesses the powers of assessing damages; but that is only if they find for the pursuer. But it does not follow that if they do not find for the pursuer, but remit the case to the Court of Session, to be disposed of by them, that in that event the case must go back to the jury for ultimate disposal. By the 59th Geo. III. the Court of Session are bound at once to send all actions of damages to the Jury Court. This was an early enactment, and has never been departed from. The moment defences are lodged in such cases, the Court of Session ceases to have further jurisdiction in regard to them. They are immediately sent to the

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Reference is made to section 13, as inconsistent with this view. But, with great deference, I would say, that this conclusion is founded on a great mistake as to the meaning of that section. It provides, “that nothing in this act contained shall extend or be construed to extend to prevent the Court of Session, in either of its Divisions, or the Lords Ordinary (save and except in the cases concluding for damages herein-before enumerated), or the Judge Admiral, &c., to take proof on commission.” Now, it is said, why save and except the cases concluding for damages? For this plain reason, that such cases were not before the Court of Session. The Court of Session had nothing to do with them, and had no jurisdiction in regard to them. They belonged exclusively to the Jury Court, and therefore in them the Court of Session had no power to order proof on commission. But it is perfectly plain that no inference can be drawn to limit the powers of the Jury Court from this saving clause, introduced, perhaps unnecessarily, as to cases in which the Court of Session could not allow proof on commission, simply because they were not before them. If the section had not contained this exception, it might have been contended that the Court of Session might have

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I have very little more to say; but there is a clause in the act of 6 Geo. IV. which appears to me to be of great importance, and on which sufficient stress has not been laid. The 28th section of that statute enacts, “That the provisions of the said act of the 59 Geo. III., by which it is directed that certain actions be remitted to the Jury Court, but that, previous to their being so remitted to the Jury Court, questions of law or relevancy may be raised, pleaded, and decided in the Court of Session, shall be and the same are hereby repealed.” Now I beg you to observe, that this repealing clause refers to the 12th section of the act of 1819, and to the first part of that section. By this latter statute the first part of that section is expressly repealed, but the second part is not repealed. The repeal is confined to that part of the section which refers to remitting cases on questions of law or relevancy alone. Now, when one part of a section is expressly repealed, and the part immediately following is not repealed, it follows that the intention of the legislature was not to repeal that second part. I have not considered that part of the 6th Geo. IV. referred to by the Lord Justice Clerk, as it is not in the printed papers, and I was led to believe that all the sections which bore any reference to the question were contained in these printed papers. But I am of opinion, for the reasons already stated, that the Jury Court has the power of retransmitting such of the enumerated cases to the Court of Session as they think unfitted for jury trial. And there must be very few cases in which we would

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Lord Cockburn .—“This case is of vital importance to the future condition of jury trial in civil causes in this country. This mode of investigating facts was originally introduced with such caution, that no entire cause was allowed to be sent for trial, but only such detached issues as the Court of Session thought ‘expedient.’ If this had been deemed safe as an ultimate system, there was no reason for altering this provision of the original act. But it was altered very materially, and by a very marked step, in the very next statute, which declares certain causes to be proper for trial by jury; and, accordingly, enacts that these shall be sent to the Jury Court for trial, except in the single event (as I think) of there being legal questions which, in the opinion of the Court of Session, ought to be determined first. The third act not only enlarged the description of these cases, but took away the power, formerly given to this Court, of abstaining from remitting, in order that supposed questions of law or relevancy might be discussed here. The fourth and last act confirms these cases, as appropriate to trial, and makes it competent to fix the facts, even of consistorial cases, by verdicts.These statutes all demonstrate a steady and progressive confidence in the system of trial by jury, and an increased tendency to have the character of the cases that are to be so disposed of fixed by parliament. Accordingly, so far as I can discover, no attempt has ever been made till now to get the Court to exercise any discretion as to the fit application of this system to any of those enumerated cases. Whenever

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But the doubt that has now been raised is, whether the statutes fix any cases whatever as cases of which the facts, if they are to be investigated at all, must be investigated by juries. The doubt is, whether it be not competent for this Court to withdraw even the enumerated causes from trial, whenever it may happen to think trial inexpedient.The plain result of this is, that it places the extent to which trial by jury is to be practised entirely in the discretion of the Court. It entitles every party to contest the fitness of his particular case for trial; and justifies, and therefore tempts, a vexatious preliminary discussion on this subject, even in the clearest case of damages, such as that arising from injury to land where the title is not in question. Lords Ordinary, instead of being guided by general rules, which quiet the parties by their inflexibility, may order trials, or they may order unfathomable proofs by commission, according as their habits make them view the examination of given subjects familiarly or with dismay. And if a majority of the Judges in either Division should recur to the opinion which was held, at no great distance of time, by many most eminent lawyers, that trial by jury is beneficially applicable to no case whatever, the whole system might silently disappear.I can find no ground for such a result in the statutes. Not that the 12th section of the act of 1819 is so clearly expressed as it might have been, if this doubt had been anticipated; but that the

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The 59 Geo. III. cap. 35. sec. 1. not only specifies what are to be held proper jury causes, but enacts, that being so, they shall be sent at once to the Jury Court for trial; and the Jury Court is not merely authorized, but is imperatively required, “to settle an issue or issues, and to try the same by a jury.” The two next sections seem to me to introduce all the provisions that were thought necessary for the disposal of questions of preliminary law or relevancy in relation to these enumerated causes. The import of them is, that such questions are to be settled by this Court before the remit. But if the case should pass this stage, and the remit be made, I am inclined (though I admit that there has been some practice against this) to think that these questions could not afterwards be revived, but that the province of the Jury Court consisted in merely trying the case.And when the first part of the 12th section empowers the Jury Court still to send the case back for the discussion of such legal matter as should be discovered in trying to settle an issue, it rather appears to me that there is some ground for maintaining that this only relates to the non-enumerated cases. It relates to “the cases remitted to them as aforesaid;” which words may, without any violence, be applied so as to include, not the causes finally disposed of by the three first sections, but those immediately preceding the 12th clause; being all

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But, assuming that this first part of the 12th section embraces all cases whatever, the second part, which expressly relates only to causes to which jury trial is not ‘beneficially applicable,’ stands in a very different situation. The gates may be left very open for points of preliminary law, and yet shut very close against speculations as to the expediency of proofs by commission. It is said that the words, “in the course of settling an issue or issues,” must be held to comprehend judicially the very same things in every part of the same clause. I am not aware of any necessity for such construction, where there are relative words which give the same expressions different meanings in different places even of the same section. We must give the statute the greatest amount of consistency that we can upon the whole.Now, the attempt to extend this second part of the clause to the enumerated cases is met by two obstacles, both of which, to my mind, are unsurmountable:—1st, I cannot reconcile this construction with the previous positive enactment, that these enumerated cases are proper for trial by jury. To say that a case is ‘appropriate for jury trial,’ seems to me exactly to say, that it is a case to which jury trial is ‘beneficially applicable.’ Therefore the defender's construction makes the two parts of the act

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If the case, therefore, had depended on this statute alone, I should have held that, the cause being on the catalogue of proper jury cases, and there being no question of law, and the facts being disputed, it was not in the power of the Court to prevent a trial. But the matter is made clear by the subsequent acts.The 6 Geo. IV. cap. 120. enlarges the description of appropriate jury causes, and compels this Court to send them forward for trial without waiting to discuss any legal question. But due provision is made for the disposal of such matter, by a clause which was not noticed at the bar, but seems to me to be decisive. It is the 33d, which introduces a totally new set of regulations upon this subject. Its substance is, that when any legal question, proper to be settled before trial, shall occur in the Jury Court, that Court may either send back to the Court of

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The act of 1830, which abolished the Jury Court, declares, that all causes which formerly behoved to be tried in that Court shall thenceforth be tried in the Court of Session. It does not enlarge the catalogue of jury causes; but neither does it abridge it, or warrant any new mode of ascertaining their facts. It keeps up whatever necessity there was under the previous statute for trying facts by juries.

I do not consider the case of Leslie 1 as any authority

Footnote

1 Leslie v. Blackwood , 3 Murray, 157.

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Something has been said, and a good deal more insinuated, with respect to the policy of the system of compelling a court to try any cause by jury, to which that court may think that trial by jury is not beneficially applicable. This is plainly not a judicial consideration. I shall only say, therefore, that if this problem shall ever come before us, I anticipate no difficulty in making up my own mind upon it. Meanwhile, I feel no uneasiness in relying on the experience of England, where there is no other way, except by jury, in which the common law courts can examine the facts, and where, nevertheless, there are sufficient practical means for avoiding the trial of really untriable cases.”Lord Meadowbank .—“Deeming it unnecessary, after the judgments which have been delivered at so great length, to occupy the time of the Court by going over views of this question which have already been fully explained, I shall only say that I have more than once changed my mind in reference to the question before us; but I am now decidedly of the same opinion as the Lord President and Lord Justice Clerk.”Lord Mackenzie .—“I have arrived at an opposite conclusion. The question depends upon the meaning

Footnote

1 Lady Mary L. Crawford v. Dixon , 2 W. & S., 354.

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Then, with regard to section 13th, I think that it has no application to the present question. If it had not contained the saving clause, would it not have been inconsistent with the previous provisions of the act? Would it not have been said that the section contained nothing to prevent the Court of Session from disposing of the enumerated cases, whenever they pleased, by proof on commission? But what does the clause save? Just the regulations of the act, by which it is provided that such cases shall go to the Jury Court, there to be disposed of. It never can be interpreted as taking away the powers of the Jury Court. It never could be interpreted as taking away their power of remitting such cases to the Court of Session, when they thought them unfitted for jury trial.If, then, this power existed in the Jury Court in 1819, was it taken away by the subsequent act of 6 Geo. IV.? I cannot see that it was so taken away. By that act it is provided, that the enumerated cases “shall be held as causes appropriate to the Jury Court, and shall, for the purpose of being discussed and determined in that Court, be remitted at once to that Court.” It is said that these expressions import that such cases must remain in the Jury Court, and must be in every point disposed of there. But that interpretation must be wrong; for the 33d section refers to half a dozen ways in which such cases may be remitted to the Court of Session Therefore the expressions I have quoted must be taken exceptis excipiendis, and under these exceptions amongst others which are contained in the previous act, and unrepealed. This 33d section provides, that when the parties shall agree as to the

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This power has never yet been exercised, not because it was thought by the Court or by practitioners not to exist, but because no cases have occurred in which the necessity has arisen for exercising it; and I have no doubt, that if we find in favour of the abstract question of power, we may never see a case again, for many years, in which the power would require to be exercised.”Lord Corehouse .—“The question under consideration is of great consequence to the due administration

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The question is not, whether the form of jury trial is beneficially applicable to the individual case before us; it is the abstract question, whether it is competent for us in any action, and under any circumstances, to retransmit one of the enumerated actions from the jury roll, on the ground that trial by jury is not beneficially applicable to such action?In judicial procedure, causes may occur, and perhaps not rarely, which are not fitted for this mode of trial. An action may be raised which may either involve complicated accounts, or a great and intricate mass of documentary evidence, or questions of abstruse science. The merits of such an action may be altogether unsusceptible of adequate explanation to a judge and a jury during the period of a jury trial. And if it were necessary to confirm the position that there are such causes, I would refer to the terms of the statute 59 Geo. III. cap. 35. itself, as a declaration by the legislature that there are causes to which jury trial is not beneficially applicable, as it has expressly recognised their existence, and given directions for disposing of them.But if there be such causes it must next be examined whether they may occur among the enumerated

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I should therefore consider it a subject of much regret if the discretionary power of this Court did not extend to the enumerated as well as the non-enumerated actions. And I shall now state shortly what I consider to be the true construction of the statutes affecting the question.The pursuer appears chiefly to argue, that the three first sections of 59 Geo. III. cap. 35. refer exclusively to the enumerated causes; that the next eight sections refer exclusively to non-enumerated causes; and that the 12th section is merely a part of this last series of clauses, and is limited to non-enumerated actions only. I own that I see no ground whatever for holding that opinion. The words of the section afford no warrant for it. With regard to the first clause of the section, the words are, “That it shall be competent for the Jury Court, when it appears to the said Court, in the course of settling an issue or issues, or at any time before trial, in the cases remitted to them as aforesaid, that there is a question or questions of law or relevancy which ought to be previously decided, to remit back the whole process,” &c. I am at a loss

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Again, in the case of Allan, 1822 2 , which also was one of the enumerated actions, a motion was made in the Jury Court to retransmit it to the Court of Session for the determination of a question of law. The motion failed; but the Lord Chief Commissioner, in disposing of it, laid it down explicitly, that it would have been competent to grant the motion had it been well-founded on the merits. And in another case in 1823, which was an action for damages only, indisputably one of the enumerated actions, a motion was made to retransmit the action to the Court of Session, in order to have a question of law determined. I was of counsel in that cause, and the motion was granted, and the cause was retransmitted; after which, the Lord Ordinary sustained the defences, and assoilized from the action. The Inner House adhered to this judgment,

Footnote

1 3 Murray, 157.2 Allan v. Thomson , 3 Murray, 1.

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I consider, therefore, both on principle and authority, that the words of the first clause in section 12th apply to enumerated as well as non-enumerated causes. And where is the distinction between these words and the words of the last clause in that section? The last clause is in these terms:—
“That it shall be competent for the Jury Court, when it appears to the said Court, in the course of settling an issue or issues; that a case turns upon matter of complicated accounts, or other matter to which trial by jury is not beneficially applicable, to remit back the whole process,” &c.
On perusing these words, I can discover no distinction, either express or implied, between them and those in the first clause of the section. If the first clause extends both to enumerated and non-enumerated actions, I think the last clause must necessarily apply to both of these classes of actions also.But it is said, that even if this would otherwise have been the just construction of section 12, it is no longer so when reference is had to section 13. I do not feel moved by this argument. That latter section had a different and perfectly legitimate object in view without producing any alteration on the import of section 12. It was necessary, in regard to the disposal of non-enumerated causes, and it affects them only. But I shall not go more fully into this point, as it has been well explained in some of the opinions already delivered.But the pursuer has farther pleaded, that by 6 Geo. IV. cap. 120. sec. 28. a new enumeration of

Footnote

1 Supposed— Forbes v. Alison , 2 S. & D., p. 169. (new ed. 152.)

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It has however been farther pleaded by the

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On considering these various statutes, I am of opinion that it is not imperative on this Court, in each and every one of the enumerated actions, to send it to trial before a jury, if it appears to be one to which trial by jury is not beneficially applicable. It is true that there may be few instances among the enumerated actions in which jury trial should not be resorted to; and I hope that every year the facility of trying causes by jury will increase, so as to extend the beneficial application of that mode of trial more and more. The institution of jury trial is one for which I, and I am sure all of us, feel much admiration; and I consider it to be of advantage to that institution, as well as to the general administration of justice, if the construction of the statutes, which appears to me to be the true one, shall receive the

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Lord Jeffrey .—“The Court being so unfortunately divided upon this question, it is important that all the views by which any of the judges are led to form an opinion should be brought before the Court. I shall therefore state shortly what has occurred to me in reference to the question. I have wavered a good deal in forming my opinion; but at last I agree pretty clearly with those who hold that the Court has no power of retransmission. I do not mean to repeat the arguments which have already been so ably urged, but merely to throw out a remark or two as to the phraselogy of these enactments.I fully adopt the canon of Lord Corehouse, although I draw a different inference from it,—that when a provision is distinctly made in one portion of a statute it cannot be held repealed by general words occurring afterwards. But it appears to me that the leading provision in the act of 1819 is contained in the first section, by which the Court is authorized and required to try the enumerated cases by a jury. This is the general rule. According to the modern phraseology of statutes, if it had been intended that this rule should be subject to exception, the section would have contained some such words as “except as herein-after excepted.” I do not mean to say that such words were absolutely requisite to render valid any subsequent express exceptions contained in the

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In this statute no doubt some sections contain the restrictive words, “other than the actions for damages herein-before enumerated;” but they do not do so always, even when such restriction is confessedly intended. In the 6th section, for instance, which quite plainly refers to the non-enumerated cases only, the words are perfectly general. It therefore follows, that the omission of these restrictive words in the 12th section by no means furnishes a conclusive ground for holding that that section refers to all cases without restriction.But the construction of the 12th section, considered as a whole, is what has puzzled me most. My interpretation of it would be much facilitated if I could think that no portion of it referred to the enumerated cases; but I cannot doubt that the first portion of it does contain a provision applicable to these cases as well as others. The difficulty, then, with the importance of which I am much impressed, is, how are you to make a distinction between the two branches of this one section, and hold them applicable to two distinct classes of cases? But you will observe, that although it is one section it is not one sentence. In the substance and object of the several provisions, the two branches are perfectly distinct. The one provides for the disposal of questions

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Then the 13th section renders the interpretation of the defenders still more difficult to be adopted. To crush it to their meaning many more words would require to be interpolated than the opposite construction requires to be understood in section 12; it being manifest that, in order to restrain the total exception of the enumerated cases which now stands in section 13, it would have been necessary to introduce such words as these—“where such have not been retransmitted, as not beneficially fitted for trial by jury.” I do think, therefore, that the expressions contained in the first section after the enumeration, viz. that the Court is authorized and required to try all such cases by a jury, amounts to a statutory declaration that to all such cases jury trial is beneficially applicable. And therefore I hold that nothing except a clear retractation of that declaration would allow us to qualify it.With regard to the 33d section of 6 Geo. IV., from which Lords Corehouse and Mackenzie have argued

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With regard to the argument of Lord Gillies, founded upon the deficiency of powers said to have been felt in the courts of England, I would just say that I think we have already got the very powers which they wished to get. In England all cases involving matter of fact, arising in the Courts of common law, must be tried by jury; and the Judges there, therefore, were anxious to possess the power of disposing otherwise of such cases as were in their nature unfitted for jury trial. Now, we already have such a power; we may try all cases, except the enumerated cases, in the Court of Session; and all that can be said with reference to this argument is, that we already have all the powers which the English Courts wanted to have, which they were not

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Lord Moncreiff .—“I concur entirely in the opinion of Lord Gillies; and the grounds upon which I have formed my opinion have been so clearly and fully explained by Lord Corehouse that I do not intend to trouble you with many remarks. I was prepared to state fully the views which I entertain of the question; but that is now unnecessary. In considering the question, we have to keep two points steadily in view: 1st, that we are called upon to give our judicial opinions upon a pure question of competency; as to whether it would be better that the law should have stood the one way or the other, we have no right to inquire; and, 2dly, that in construing a statute judicially it is not to be assumed that the legislature proceeded on the idea that any Judge in any Court would not do his duty faithfully.If the question were, whether any great number of these enumerated cases ought to be remitted to the Court of Session, I should say that very few indeed

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Lord Fullerton .—“In regard to the 12th section of the 59 Geo. III. I agree with Lord Jeffrey. I do not think that the first provision of that section can be held to be confined to what are termed the non-enumerated cases. There were obvious reasons for conferring a general power to retransmit emerging questions of law or relevancy, because, as in the great proportion of the enumerated cases the condescendences and answers were given in in the Jury Court, such questions were not likely to be raised

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But I do not think it necessarily follows that the concluding part of the section, which is in expression a substantive enactment, must receive an equally comprehensive construction; that will depend on the true meaning of the terms employed in it. And, on considering those terms with reference to those of the first and leading enactment of the statute, it would require some clearer and more unequivocal declaration to satisfy me that by this section the Jury Court were empowered to exercise a discretion as to the beneficial application of jury trial in that class of cases to which, by the clearest implication, the leading enactment had declared it to be beneficially applicable, and which it had expressly directed that Court to try by a jury.This opinion is confirmed by the section immediately following, viz. the 13th. For though, from its form of expression, it is not absolutely conclusive, it is hardly possible that, if the 12th section had contemplated the retransmission of any of the enumerated cases, for the purposes of a proof by commission, or otherwise, the 13th would have contained such a saving and excepting clause, without some explanation or qualification.Even if the question, then, had turned entirely on the act of the 59 Geo. III. I should have been inclined, though with great difficulty, to think that the Jury Court had no power, in any of the enumerated cases, to retransmit on the particular ground now under consideration.

But it does not appear to me to depend entirely on

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The purpose of it was to enact a body of regulations for the preparation of causes in the Court of Session, and for the ascertainment of facts in those cases in which the facts were disputed.Even in that department of this last class of cases, which was not specially appropriated to the Jury Court, the provisions contained in it went far to supersede the 12th section of the 59 Geo. III.; for the 14th and 15th sections provide, first, for the case of the parties differing as to facts which do not require to be ascertained by jury trial, and, secondly, for that of the parties differing as to facts which do require to be ascertained by jury trial. The adoption of the different course of procedure respectively applicable to those cases is left by those clauses to the Lord Ordinary and the Court; and after that power had been exercised, by sending a case to the Jury Court, it is not easy to see how the Jury Court could have had the power to retransmit it, on the ground that they did not consider it one to which jury trial was beneficially applicable.But the matter is still clearer in regard to the other or enumerated class of cases, which is by this statute extended much farther than by that of the 59 Geo. III. In the first place, it repeals expressly the whole provisions authorizing the remits of certain cases from the Court of Session; and, secondly, it introduces a remit of a totally different kind, and founded on a different principle. After repealing the provisions of the 59 Geo. III. as to remits of the specified class of cases, it enacts that “the following

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By these enactments an essential change was made on the former system. The Jury Court being declared to be the ‘appropriate Court’ for the class of enumerated actions, in which these actions were to be ‘discussed and determined,’ and the Court of Session being called on at once, and without any discretion, to remit these actions, it appears to me that those actions were as completely fixed in the Jury Court as if they had been brought into it by a special writ for that purpose. In truth, in the enumerated cases the remit of the Court of Session ceased, after that statute, to be any thing but the formal instrument for passing the case to the ‘appropriate Court.’Now, if the enactments had stopped here, I do not see how the Jury Court could have had the power to retransmit on any ground whatever. Having been declared the ‘appropriate Court’ in which certain actions were to be ‘discussed and determined,’ they must have retained those cases till they were so discussed and determined; and I do not see how such cases could have found their way back to the Court of Session, unless by the authorized proceedings in error, by bills of exceptions, or otherwise, after they were determined in the Jury Court.But the enactments did not stop there. For the 33d section points out the special circumstances in

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Combining this clause with the 28th, I think they necessarily constitute a repeal of all grounds of retransmission by the Jury Court to the Court of Session, except those specified in the 33d section; and, at all events, they constitute a repeal of any powers, if they ever existed, to retransmit any of the enumerated cases to the Court of Session, in order that disputed facts in these cases might be ascertained in any form but by that of trial by jury. Upon this last matter the statute seems to me to be clear. In the first place, it declares that the enumerated cases shall be discussed and determined in the Jury Court, as the appropriate Court; secondly, it points out the special circumstances under which that appropriate Court shall retransmit to the Court of Session, in regard to questions of law or relevancy; and, thirdly, it directs that in all cases in which there “remains matters of fact to be ascertained, they shall be tried by a jury.” The consequence I draw is, that these enactments are absolutely exclusive of the power to retransmit any of the enumerated cases “in which there remains matter of fact to be ascertained,” in order that such matter of fact shall be determined, not by the appropriate Court, in the statutory form

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Holding, then, that there was no power in the Jury Court, while it subsisted, to withhold any of the enumerated cases, in which there remained matter of fact to be ascertained, from trial by jury, and it being unquestionable that no different or higher powers on the matter are now vested in the Court of Session, I think the application incompetent.”Lord Cuninghame .—“Although I had formed an opinion in favour of the competency of the motion, yet now, after hearing the opinions which have been delivered, I have come to entertain considerable doubt on the question; and on the whole, considering that the Court is so nearly divided, and that I have had the least experience among your Lordships, as a Judge, I think myself justified in withdrawing, and in declining to vote, on the ground of non liquet.”The Lord President .—“It may be satisfactory to the Court to learn, that the opinion of the Lord Chief Commissioner is with the majority.”

The Court then pronounced this interlocutor:—

(10th March 1837.)—“The Lords having heard counsel in presence of the whole Court, and having considered the different acts of parliament regarding trial by jury in civil causes, and having particular regard to the 12th and 13th sections of the act 59 Geo. III. c. 35., are of opinion, and find and declare accordingly, that in the cases enumerated in the said acts as appropriated for trial by jury, where the conclusion is for damages, they have no power to take proofs by commission, on remit, or in

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Marshall's Trustees and Lord Eglinton's Trustees presented petitions of appeal, which were objected to as incompetent; and the appeal committee having reported the matter to the House, their Lordships directed the question to be argued by one counsel on each side. 2Respondent ( objecting to the appeal ).—This is an action concluding for damages to lands where the title is not in question, and is thus one of those enumerated in the statute 59 Geo. III. cap. 35., and which are ordered to be tried by a jury. A power is reserved to the Court of Session, where any question of law arises to decide such a question; but where no such question arises (and here there is none), it is enacted by section 3d, that “the interlocutor of the Lord Ordinary ordering the cause to be remitted to the Jury Court, whether with or without a reservation of the alleged question of law, shall not be subject to review by representation, petition, appeal to the House of Lords, or otherwise;” and by section 15 it is expressly enacted, that all interlocutors “ordering a trial by jury” shall not be subject to appeal. The same class of actions are enumerated in the statute 6 Geo. IV. cap. 120. sec. 28. And in uniting the Jury Court with the Court of Session, the statute 1 Will. IV. cap. 69. sec. 16. enacts, that all the provisions of the therein recited acts (including the act of the 59 Geo. III.) shall remain

Footnote

1 15 D., B., M., 784.2 The argument took place under the petition for Marshall's Trustees, it being arranged that the judgment on it should regulate the judgment on the petition of the Trustees of the Earl of Eglinton.

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Appellant ( in answer ).—The right of appeal cannot be taken away by implication. The rule as to the incompetency of appeal under section 3d of the 59 Geo. III. applies to the act of remitting a case to the Jury Court, not to the question whether a trial by jury shall actually take place. That question can arise only at the time of settling the issues. Then the statute 6 Geo. IV. cap. 120. in part repeals that of the 59th of Geo. III., and no provision is made against an appeal. In this situation of matters the statute 1 Will. IV. abolished the original Jury Court, without making any explicit enactment on the subject. The question here is, whether the case shall be sent from one roll in the Court of Session to the other; and there is no prohibition against an appeal in such a case.Lord Chancellor .—My Lords, this is an application to dismiss an appeal, as not being competent from an order. The application was made (according to the petition) in these terms,—it being in a motion stated to have been made before the Lord Ordinary as in the Jury Court:—
“That the cause should be remitted back from the jury roll to the roll of the Court of Session, in terms of the 12th section of the act 59 Geo. III. cap. 35., on the ground that it was one to which, from the nature of the case, and the technical and scientific investigation on which it would depend, jury trial would not be beneficially applicable.”
The petition states, that the Lord Ordinary required the assistance of all the Judges; and it ended in the following order:—considered the different acts of parliament regarding trial by jury in civil causes, and having particular regard to the 12 th and 13th sections of the act 59 Geo. III. cap. 35., are of opinion, and find and declare accordingly, that in the cases enumerated in the said acts as appropriated for trial by jury, where the conclusion is for damages, they have no power to take proof by commission, on remit, or in presentia but must remit all such cases to be tried by a jury.”

“The Lords having heard counsel in presence of the whole Court, and having

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My Lords,it is not disputed that the right of action in this case was one coming under the cases enumerated by the 59th of Geo. III. Those cases are also enumerated in the 6th of Geo. IV. cap. 120. sec. 28.; and it is admitted on all hands that the case in question was among those enumerated cases. The 1st section of the 59 Geo. III. provides, that in those cases the Lord Ordinary, without any discretion, shall send the case to the Jury Court. The application in question is made under the 12th section of that act. Then there is a series of sections, commencing with the 4th, providing, that in all cases not enumerated, as to which provision is made, the Lord Ordinary or the Court of Session may, if the case appears a fit case for the purpose, send it to be tried by the Jury Court. Then the 12th section provides, “that it shall be competent to the Jury Court, when it appears to the said Court, in the course of settling an issue, or at any time before trial, in the cases remitted to them, that there is a question or questions of law or relevancy which ought to be previously decided, to remit back the whole process and productions to the Division of the Court of Session, Lord Ordinary, or Judge Admiral, who remitted the same to the Jury Court, that the question or questions

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Now, it would be rather a singular provision, if, in the first instance, it were imperative on the Lord Ordinary to send one of the enumerated cases to be tried, against which order there can be no appeal; and yet, when it got to the Jury Court, and measures were being taken to send it before the Jury, it could be sent back to the Lord Ordinary or the Court of Session,—that there should be discretion in the Court whether to send it to the Jury or not. That, however, is an objection which would lie more to the order to which the appeal applies, than to the particular case now under your Lordships consideration.The next section, however, the 13th, provides, “that nothing in this act contained shall extend or be construed to extend to prevent the Court of Session, in either of its Divisions, or the Lord Ordinary, (save and except in the cases concluding for damages, herein-before enumerated,) or the Judge Admiral, unless otherwise instructed as aforesaid by the Court of Session, to take proof on commission, by remit, or in presentia, and thereafter disposing of the cause in the manner now practised in such cases.”Then the 15th section provides, “that it shall not be competent, by representation, reclaiming petition, bill of advocation, appeal to the House of Lords, or

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The only part of the statute on which it is attempted to be shown that the present appeal is founded is the 12th section, which provides, that in certain cases applications may be made to the Jury Court to send a case back from the Jury Court to the Court of Session. That affords a strong reason for believing that if that case were now before your Lordships for decision that would apply, not to the enumerated, but to the non-enumerated eases; but it is quite clear, that under the provision in that section only the question now before your Lordships arises. It is a statutory provision, under which the application is to be made; and it is clear that the act of parliament which gives that power does not give a power of appeal. It is against the refusal of the application that the present appeal is presented.

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Then it is said, however that might be before the statute of the 1st of William IV., the statute of 1st William IV. has altered the case, inasmuch as the Jury Court is merged in the Court of Session. That statute certainly has provided, that all those powers which had before that time been executed by the Jury Court should be in future executed by the Judges of the Court of Session; but it never could be supposed that the true construction of that act was to destroy all the machinery which the previous acts of parliament had established as the means by which it was to be ascertained what cases were to be tried by that Court, and what cases were to be tried by the Jury Court, and regulating the cases in which the one or the other course was to be adopted. There can be no doubt of that being the intention of the act, from the general nature of it; but the 16th section of that act appears to put an end to all discussion, for it enacts, “that all the provisions of the foresaid recited acts now in force, in so far as not inconsistent with this act, shall be construed and remain in force until altered or revoked by parliament; and that all rules and regulations in observance in the Jury Court at the time of the union of jury trial in civil cases with the administration of justice in the Court of Session, established and enforced by act of sederunt, shall

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“That all the provisions of the foresaid recited acts now in force, in so far as not inconsistent with this act, shall be continued and remain in force until altered or revoked by parliament; and that all rules and regulations in observance in the Jury Court at the time of the union of jury trial in civil causes with the administration of justice in the Court of Session, established and enforced by acts of sederunt, shall continue and be observed as rules and regulations applicable to the Court of Session after such union, until the same shall be altered by acts of sederunt.”
My Lords,it is quite obvious, I apprehend, that that act did not at all intend to alter the provisions with respect to the means by which the powers of the Court were to be put in operation; but that it was for the purpose of providing, that the jurisdiction exercised by the Jury Court should be exercised in future by the Court of Session, they discharging the duties of the jurisdiction separately, so as to carry into effect all the provisions of the prior acts. It appears to me, that, on

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Lord Brougham .—My Lords, I entirely agree in the conclusion to which my noble and learned friend has come to upon this subject. If the act of the first of the present King had been drawn with greater precision, and the manner of the transfer of the Jury Court to the Court of Session had been more distinct, it would have left no question at all in the present case. It is alone because that is not done with sufficient distinctness that the present question has arisen. If it had been said in that act (and we must take it as if it had been said), the Jury Court is to cease and determine from and after a certain day, as now constituted,—that is to say, as a separate Court, but that, nevertheless, the functions of the Jury Court shall hereafter—that is to say, after that shall have ceased and determined as a separate Court—continue to be performed by the Court of Session, then we should have the Court of Session acting in the separate capacities clearly laid down in the act, both as a Jury Court, and as the Court of Session. Then, if it acted in two separate capacities, both as a Jury Court and a Court of Session, the 12th section of the 59th of Geo. III., upon which, and upon which alone, the present application could be made, would have applied to it in both these capacities; and we should have read it:—It shall be competent to the Jury Court, when it shall appear to the said Court, in settling an issue or issues, that the matter turns on complicated accounts, to which trial by jury is not applicable, to remit both the whole process and productions, with their report thereon, in order that the

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The House of Lords ordered and adjudged, That the said appeal be dismissed this House, as incompetent, without costs.Solicitors: Deans and Dunlop— Andrew M'Crae— Richardson and Connell, Solicitors.