Scottish Court of Session Decisions

The Commissioners of annexed estates claimed the whole fishings in the River Conon, and their right was disputed by the burgh of Dingwall, which claimed right to the fishings of a tract of the river next the sea. Mutual declarators were raised by these parties; a proof was led; and a plan of the river was prepared by Alexander Sangster in 1763, which exhibited, on the north bank of the main channel of the Conon, a place marked Balblair, a place marked Breakenord, and a black line described as “march betwixt Balblair and Breakenord.” It farther exhibited two places, respectively marked on the north bank as pool Oure, and pool Breakenord, both of which were to the west of the black march-line, which lay lower down the river. These pools were fishing stations in the river. The plan also exhibited, on the south bank, a spot marked “Fisher's Lodge,” which lay lower down the river than the black march-line. On January 24, 1778, this judgment, in the mutual declarators, was pronounced by the Court:—“Having advised the informations, hinc inde, the Lords find that the Commissioners of the annexed estates have not produced a sufficient title to the whole fishings of the river of Conon; but find that the Magistrates and Town-Council of Dingwall have produced a sufficient title to the fishings in the said river, opposite to their property, from the march at Breakenord down to the sea; therefore, not only assoilzie the said Magistrates and Council from the action against them, brought by the said Commissioners, but decern to the effect foresaid, in the action at their instance against the said Commissioners, and declare accordingly.”

The Hon. Mrs Maria Hay Mackenzie acquired the right of fishing which had been in the Commissioners of annexed estates; and she, along with her tacksman, Captain Hugh Munro of Teaninich, raised a process of declarator and damages, in 1824, against the burgh of Dingwall, Hugh Rose of Glastullich and his spouse, and John Carpenter Steavenson, tacksman of these parties in fishings in the Conon. The action concluded to have it found and declared that the pursuers had the sole right of salmon fishing in the Conon, and that the defenders had no right whatever of salmon fishing there. The defenders asserted their right; but also pleaded that it was res judicata under the former process, and could not be tried anew. In this process Sangster's plan was produced and referred to. The defenders stated on the record that the portion of the river where they had right to fish, was “the whole of the river, as marked on the plan in process, lying below the inarch betwixt Balblair and Breakenord to the sea.” After the record was closed, Lord Corehouse, Ordinary, on March 11, 1828, pronounced this judgment:—“Having heard counsel for the parties upon the whole cause, and, in particular, upon the demand now made for an interdict against the defenders to fish above the march between the lands of Balblair and Breakenord; in respect it is averred that the defenders have been fishing above the said march, which, by their admissions on the record, they are not entitled to do, in the mean time, prohibits, interdicts, and discharges the said defenders, or any of them, their tenants, servants, fishers, or dependants, from fishing or killing salmon in any part of the River Conon, above the line delineated on the plan in process, as the march between Balblair and Breakenord; but in respect the defenders do not admit that the said line is accurately laid down in the plan, without prejudice to the parties to ascertain the exact march between Balblair and Breakenord, before the interdict is declared perpetual; grants diligence at the defenders' instance, against havers, for recovering the printed informations, in the case which depended between the Commissioners of the annexed estates, and the Magistrates of Dingwall, founded on as res judicata by the defenders, or copies of these informations; and commission to the Sheriff-Depute, &c. (to take depositions of havers, &c.); appoints the parties to prepare mutual cases upon the whole cause, to be seen, &c.; and appoints them to print, at their joint expense, the proceedings in the mutual actions between the Commissioners of annexed estates, and the Magistrates of Dingwall, including the said informations if recovered, and to lodge copies thereof along with their cases.”

The defenders reclaimed against this judgment, and prayed the Court to recal the interdict against their fishing “in any part of the river Conon, above the line delineated on the plan in process as the march between Balblair and Breakenord; and in case your Lordships shall think proper to grant any interdict against the defenders, to limit the same, so as to prevent their fishing above the march between the lands of Balblair and Breakenord only, according to use and wont, and that without any reference to the plan in process.” The defenders omitted to append the record to their reclaiming note, and, on May 31, 1828, the note was, on that ground, refused as incompetent. A counter note by the pursuers was refused along with it.

Subsequently to this, various steps of procedure took place. The Court took into consideration the import of the proof which had been led in the process 1778, and also the plan of Sangster, and on February 16, 1832, their Lordships pronounced this interlocutor:—“Considering it material to ascertain the exact situation of the Fishers' Lodge, before answer, remit to James Jardine, engineer, to prepare a plan of the water of Conon and adjoining banks, from the upper end of the island Baen to the sea, and to delineate thereon the situation of the Fishers' Lodge, both in reference to its real situation, and as to its situation as marked upon Sangster's plan, and also to delineate such other objects as shall appear to him to be of any importance to the question at issue.”

A plan and relative report were prepared by Jardine. In the report it was stated that the march between Balblair and Breakenord was laid down according to the information received on the spot from some old inhabitants and tenants. It was also stated that the principal channel of the river had undergone great changes by land-floods since the date of Sangster's plan. In particular, several pools were mentioned, including pools Oure and Breakenord, in which one of the banks was much cut away, and the lower end of the pool extended considerably down the river. The report farther mentioned, that there were few permanent objects delineated on Sangster's plan, so that it was difficult to compare it with the new plan; that the Fishers' Lodge, and a certain large Grey Stone were the best of such permanent objects, but that the precise site of the former was alone marked on Sangster's plan.

The Court, after considering this plan and report, “remitted to Mr Jardine to describe on his plan a line, corresponding as nearly as possible with the black line described on Sangster's plan, as the boundary of the fishings, and the march at Breakenord.”

A red line was accordingly drawn by Jardine on his plan, from the Fishers' Lodge on the one side of the river, to a point marked P on the other; and the Lord President, and Adam Rolland, principal clerk of Session, authenticated that line with their subscriptions. Their Lordships then, on July 11, 1832, pronounced this interlocutor:—“Having resumed consideration of this reclaiming note, with the revised cases and interlocutor of this Court, 17th June, 1831, and plan and report by James Jardine, civil engineer, dated the 9th day of March last, and proof on which the decree 1778 proceeded, and heard the counsel for the parties; they, of new, recal the interlocutor of Lord Newton, 11th March, 1831, and find that ‘the March at Breakenord,’ used in the decree 1778, is the Fishers' Lodge, on the south side of the river Conon, or on Island-More; and the letter P at the bend, eastward of the Burn Ousie, on the north side: And the said James Jardine having, by the direction of the Court, drawn a red line from the point denoting ‘Ruins of Fishers' Lodge,’ on the plan in process made by him, across the water of Conon to the letter P aforesaid; they find and declare the said red line to be the march in respect to the right of fishing salmon in said water, betwixt the pursuers and the defenders; and that the defenders have no right of salmon fishing higher up than the said line, and the pursuers no right below it; and the Lord President, and Adam Rolland, principal clerk of Session, have, with reference to this judgment, certified the said line on Jardine's plan in process, by putting their names along it; and decern: and Find the defenders liable in the pursuers' expenses, since the date of the remit to the said James Jardine, and in his charge for survey, plan, and report,” &c.

The defenders took the cause to appeal, and the pursuers entered a cross-appeal. On April 12, 1834, the House of Lords pronounced a judgment narrating the defenders' appeal “complaining of an interlocutor of the Lord Ordinary in Scotland, of the 11th of March, 1828, in so far as it, ‘in the mean time, prohibits, interdicts, and discharges the said defenders (the appellants), or any of them, their tenants, servants, fishers, or dependants, from fishing or killing salmon in any part of the river Conon, above the line delineated on the plan in process, as the march between Balblair and Breakenord;’ also of an interlocutor of the Lords of Session there, of the First Division, of the 31st of May, 1828; also, of another interlocutor of the said Lord Ordinary of the 12th of November, 1828, in so far as it, in the mean time, continues the interdict; also, of two interlocutors of the said Lords of Session of the First Division, of the 20th, and signed the 22d of January, and the 10th February, 1829; also, of another interlocutor of the said Lord Ordinary, of the 26th June, 1829; and also, of six interlocutors of the said Court of Session, of the 4th December, 1829, the 17th June, 1831, the 16th February, 1832, the 6th July, 1832, and two of the 11th July, 1832, and praying that the same might be reversed, varied, or altered, so far as complained of, or that the appellants might have such relief in the premises, as to this House, in their Lordships' great wisdom, should seem meet; and likewise, upon the cross appeal of the Honourable Mrs Maria Hay Mackenzie of Cromarty, and Hugh Munro, Esq. of Teaninich, complaining of an interlocutor of the Lord Ordinary in Scotland, of the 11th of March, 1828, in so far as it contains a statement or narrative, ‘That the Lord Ordinary had heard counsel for the parties upon the demand now made for an interdict against the defenders to fish above the march between the lands of Balblair and Breakenord;’ and a statement, ‘that it is averred that the defenders have been fishing above the said march;’ also of an interlocutor of the Lords of Session there, of the First Division, of the 31st of May, 1828, in so far as it refuses a reclaiming note presented by the pursuers; also of an interlocutor of the said Lord Ordinary, of the 12th of November, 1828; and also of another interlocutor of the said Lords of Session, of the 20th (signed 22d) January, 1829; and praying that the same might be reversed, varied, or altered, so far as complained of; or that the appellants might have such relief in the premises, as to this House, in their Lordships' great wisdom, should seem meet. As also upon the answer, &c. (to the respective appeal and cross appeal):—whereupon it was ‘ordered and adjudged, by the Lords Spiritual and Temporal, in Parliament assembled, that the said original and cross appeals be, and are hereby, dismissed this House, and that the interlocutors therein complained of be, and the same are hereby affirmed.’”

In the mean time, on April 12, 1828, a protest had been taken by the pursuers, and intimated to the defenders, that the interlocutor of Lord Corehouse, of March 11, 1828, had become final, not having been competently reclaimed against; that there was thus a standing interdict against fishing above the black line on Sangster's plan; that pools Oure and Breakenord were both delineated on the plan as above that line; and that if the defenders fished in these pools, they should be liable for breach of interdict. Other similar protests were afterwards taken.

On June 19, 1828, the pursuers presented a petition and complaint against the defenders, alleging that the defenders were continuing to fish in pools Oure and Breakenord, in defiance of the authority of the Court, and to the great damage of the pursuers. They prayed the Court to find the defenders “guilty of a contempt of Court, and breach of interdict,” and in respect thereof to inflict on them a fine of £200, or imprisonment; and further, to find them conjunctly and severally liable to the pursuers in the sum of £1000 of damages, more or less. A record was made up in this petition and complaint, and certain interlocutors were pronounced in it, particularly on June 4 and July 11, 1829, and also a judgment by the House of Lords on appeal. After this judgment, and after the judgment of the House of Lords, already quoted, was pronounced in the declarator, dismissing the appeal and cross-appeal, the following issue was prepared, in the petition and complaint, for trial by jury:—“It being admitted, that, in a process of declarator and damages at the instance of the pursuers against the defenders, Lord Corehouse, Ordinary, upon the 11th day of March, 1828, pronounced the following interlocutor:” [Here the interlocutor was set forth, which is quoted ante, p. 1306.] “Whether, between the 14th day of March, 1828, and the 19th day of Juno thereafter, the defenders, in violation of the interdict granted by the said interlocutor, wrongfully fished in any part of the said river, situate above the line delineated on the plan in process as the march between Balblair and Breakenord, as specified in the above interlocutor?”

The cause was tried before Lord Mackenzie at Inverness. The pursuers, at the trial, put in the following documents, as stated in the Notes of Lord Mackenzie:—

“1. Memorial in old process,—Interlocutor 24th January, 1778.

“2. Sangster's plan.

“3. Record in declarator, &c.

“4. Note of pleas in law.

“5. Revised answers for the defenders, p. 31.

“6. Revised condescendence for Mrs Mackenzie, &c.

“7. Note of pleas for defenders.

“8. Reclaiming note against interlocutor in declarator for defenders.

“9. Interlocutor refusing it, 31st May, 1828.

“10. Four protests, admitted to have been taken.

“11. Answers to protests—same.

“12. Inventory of productions with it.

“13. Other protest.

“14. Extract minutes of meeting of Magistrates of Dingwall, 2d October, 1827, stating Councillors,—Macrae one in 1828. Admitted.

“15. Jardine's plan, referred to in judgment, and marked by Court.

“16. Interlocutors, 6th and 11th July, 1832.

“17. Judgment of House of Lords.”

The pursuers proposed to put in Jardine's plan, without the relative report, but, on the motion of the defenders, they were ordained to produce the report as being relative to the plan, and referred to in the interlocutors of Court. It was accordingly produced. The pursuers then called two witnesses for the purpose of establishing that the fishings had been carried on by the defenders as high as the highest of pools Oure and Breakenord, notwithstanding the interdict in the interlocutor of March 11, 1828. The defenders led no evidence. The jury found a verdict for the defenders. The pursuers afterwards moved the Court “for a rule to show cause why the verdict returned in this case, should not be set aside as contrary to evidence, to law, and judgments of the Court between the parties.” This motion was afterwards restricted to the single ground that the verdict was contrary to evidence. The pursuers obtained a rule to show cause. The defenders, in showing cause, were proceeding to refer to certain interlocutors both in the process of declarator, and also in the process for breach of interdict, including inter locutors dated J and July 11, 1829, and the judgment of the House of Lords in that process. The pursuers objected to this, in respect that they had put none of these interlocutors in evidence before the jury; the defenders had led no evidence; and, in disposing of a motion to set aside the verdict, which was now restricted to the single ground that the verdict was contrary to evidence, the defenders were not entitled to found upon any documents of any sort, which were not in evidence before the jury. The defenders stated that the object for which they wished to read the interlocutors, at least those in the petition and complaint, and in the appeal of that process, was—that the interlocutor of July 11, 1829, renewed the interdict in certain terms; that the judgment of the House of Lords was applied by a special interlocutor in the Court of Session, and the issue was adjusted in the terms prescribed by the House of Lords; and that the perusal of the interlocutor of July 11, 1829, and of the judgment of the House of Lords, would demonstrate that the black march-line on Sangster's plan, could not have any connexion with the red line on Jardine's plan; that the interim-interdict referred to the black march-line of Sangster only, which was a land-march, not a fishing-march, and did not nominatim mention either pool Oure or pool Breakenord; and that the construction which the pursuers put upon that interim-interdict, by assuming it to apply to these two pools, was at direct variance with the judgment of the House of Lords. The Court held that the inter locutors in the original process of declarator and damages could not now be referred to, except in so far as they had been put in, before the jury. But in regard to the interlocutors in the process for breach of interdict, in which process the jury trial was held, their Lordships ordered cases “upon the competency of referring to the steps of procedure and interlocutors in this petition and complaint, and also in the appeal regarding the same, although the same were not given in evidence, or noticed to the jury, who tried the cause.”

Pleaded by the Defenders—

1. In disposing of a motion for new trial, the Court possessed a larger discretion, than in dealing with a bill of exceptions. ¹ In the former case, even if a verdict was shown to be contrary to evidence, the Court were entitled to take into consideration any ground in law, or arising on documents the import of which was matter of law, though not before the jury, if thereby it was made evident and certain to the Court that

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¹ Grant on New Trial, p. 147 and 192—Adam on Jury Trial, p. 179–190—3 Blackst. 390—Crooks, 10 East 268—Norris, 1 Cowper, 37.

the verdict was according to justice. And in general, in dealing with such an application, the Court might take into their consideration whatever was necessary to the due understanding of the merits of such application, in all its bearings.

2. But at least the Court were entitled to look at the whole record, and especially their own interlocutors were open to their consideration. Although the petition and complaint had happened not to have been specially put in by either party before the jury, it would still have been competent, in a motion for a new trial, for the defenders to have stated that the issue was taken in a process of a penal nature; that its conclusions were for fine or imprisonment, and heavy damages; and for that purpose, to have read these conclusions to the Court, whether they had been stated to the jury or not. In like manner, though the record in the cause had not been put in, it would have been competent to refer the Court to it. But, a fortiori, it was competent to read any interlocutors in the cause, to the Court, because it was peculiarly within the province of the Court to know these at all times, and in relation to every step of procedure in the cause.

3. It had been expressly held by the President of either Division of the Court, in trying causes by jury, that, since the incorporation of jury trial with the Court of Session, the entire record might be referred to by either party before the jury, without being specially put in. ¹ And the subsequent practice had been in accordance with these determinations. But it necessarily followed that if any part of the record could have been referred to before the jury, without being specially put in, it might also be subsequently referred to before the Court. It would not interfere with any right of reply on the part of the pursuers, although the defenders were now allowed to read these interlocutors. No such right could arise to them, in any view, before the jury, because the interlocutors in question were not read to the jury by the defenders; and if these interlocutors were read now, the pursuers would have their right of replying on them in the only court where they had been read.

4. In any view, it should be held competent, in pleading this question, to refer to the interlocutors, not as evidence of any facts, but to the limited effect of showing the true meaning of the Issue, and of the interdict therein referred to. It was essential for the Court to be certiorated of this, as the first step in disposing of the pursuers' motion; and after having the cause thus fully stated, it would enter as an element into the consideration of the Court whether the fact of these interlocutors not having been read to the jury, taken along with the other grounds

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¹ Schuurmans and Son, July 18, 1832 (ante, X. 843)—Ralston, July 18, 1832 (ante, X. 848.)

stated by the pursuers, supported their motion for a new trial, or negatived it,

Pleaded by the pursuers—

1. In disposing of a motion for new trial, on the special ground that the verdict was contrary to evidence, the Court were not entitled to take into consideration any evidence of any sort, except what was before the jury. ¹ If the party defending the verdict could not defend it on that evidence, the precise case had occurred in which the motion for new trial must be granted.

2. The record and interlocutors were not excepted from this rule. ² The record might contain important admissions, and the interlocutors might contain various findings, the subject-matter of which was not before the jury unless such record and interlocutors, as the evidence of such subject-matter, were laid before the jury. The record and interlocutors belonged as truly to the class of documentary evidence, as any other documents could do: and unless laid first before the jury, so as to become the basis of their verdict, they could not, any more than other documents, be laid before the Court in support of the verdict. But further, if the defenders were allowed to refer to the interlocutors in question, in support of the verdict, the pursuers must be allowed to refer to any other interlocutors or documents which might take off the effect of the defenders' references; and it was difficult to draw any line for stopping the recourse to extraneous matter which might thus become inevitable.

3. The two cases founded on, did not warrant the inference drawn by the defenders; and the misapplication of the dicta in these cases, had led to very prejudicial results, ³ which required now to be checked. Before the incorporating of the Jury Court with the Court of Session, the record and process required to be specially put in, and marked by the clerk, or they could not have been referred to, or founded on, before the jury. It was now held that the record might be referred to by either party, at the trial, or founded on before the jury, without requiring to be specially put in. But it was only in so far as it was referred to, or founded on, at the trial, that it was held to be before the tribunal of the jury, as distinct from the Court: and unless it had been so laid before the jury, at the trial, it could not afterwards be founded on in support of the verdict. Besides, if any other principle were admitted it would be extremely prejudicial to the pursuer's right of reply. Because a defender might select some part of the record containing an admission, or alleged admission, as proof of an important point in the cause, and address the jury on it, without giving any right of reply to the pursuer, if the whole record were held to be before the jury in every cause. Or the judge, or the

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¹ Tatham v. Wright, 6 Neville and Manning's Rep.

² Macdonell, July 21, 1834 (ante, XIII. 701).

³ Pearson, July 20, 1835 (ante, X11I. 1138).

jury themselves, might found on any part of it, though not founded on by either party; and so the cause might be made to turn upon evidence which neither party had considered or discussed at the trial.

4. It was incompetent to found upon the interlocutors in question, even to show the true meaning of the issue. ¹ And if they were necessary for elucidating its true meaning, and had not been before the jury, it followed that the jury had been applying the evidence which was before them, to the trial of an issue which they had not the means of understanding. That alone would be fatal to the verdict. And, generally, in dealing with this motion, the Court were hound to shut out from themselves all light which was shut out from the jury, and so to determine whether the verdict of the jury was contrary to the evidence laid before them.

The Court directed the cases to be laid before the other Judges for their opinion on the question which was directed to be argued, in the interlocutor ordering the cases.

The following opinion was returned by the Lords Justice-Clerk, Glenlee, Meadowbank, and Medwyn.

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¹ L. Forbes, Sept, 7, 1831, 5 W. and S. Appeals, 384.

Understanding that the defenders, in whose favour a verdict has been found in this case, in regard to the complaint against them for breach of interdict, and who are opposing the motion for a new trial by the pursuers, on the ground of its being contrary to evidence, propose, in support of their argument, to refer only to interlocutors and proceedings in the process itself, in which the issue was adjusted and sent to trial, we do not consider that such proposal is incompetent. We do not, however, think that these interlocutors and proceedings can be referred to as evidence, but only as affording means of illustration for the due understanding of the true meaning of the issue, and the evidence that was adduced at the trial, and for enabling the Court to decide correctly on the application for the new trial. In listening to arguments in support of or against a motion for a new trial in the same court from which an issue has been sent, the Court must be entitled to keep in view the course of its own proceedings in the cause, and to refer to any judgments which it may itself have pronounced, or which, having been reviewed by the House of Lords, have been remitted from that House, previous to the adjustment of the issue that was sent to trial. For as it is obvious that certain points in a case may have been decided by previous interlocutors, an attention to which may enable the Court to solve any ambiguity, both in regard to an issue subsequently sent to trial, and also to decide on an application for a new trial after a verdict has been returned, such previous interlocutors may surely be competently referred to, either in the arguments of counsel or by the Court itself.

Had the record in this cause contained a statement of the interlocutors and proceedings in question, we consider that they would have been accessible to both parties, without the necessity of being put in on either side as evidence at the trial, according to the arrangement and understanding sanctioned at trials before both the Lord President and Lord Justice-Clerk, with the assistance of Lords Gillies and Mackenzie, in 1832, as stated in the reports; ¹ and although the particular interlocutors and proceedings that are now proposed to be referred to, are not contained in the record, yet as we understand they have all occurred in the progress of this cause, we do not consider it is incompetent to refer to them, merely in explanation and in support of the defenders' argument, and not as being in reality new evidence, that might have been brought forward, but was withheld from the Jury; and if the pursuers are allowed, as we presume they will unquestionably be, to reply to the whole of the defenders' argument, we do not see any risk of injustice being done to either party.

Without intending to indicate any opinion in regard to the application for a new trial in this case, it may be right to keep in view, as bearing upon the province of the Court in deciding on an application of the present nature, the following passage in the Lord Chief-Commissioner's Treatise on Trial by Jury, p. 189:—“In respect to the discretion to be evinced in granting a new trial, where a verdict for a defendant is proposed to be set aside by the plaintiff, as being contrary to evidence, the Court will not interpose, though the verdict may be made out to be contrary to evidence, if the defendant has a good ground in law, or on documents, the import of which is matter of law, to arrest the judgment which would be attainable on such correct verdict; because it would be sending a case to the expense of another trial, from which the party requiring the trial could derive no fruit or benefit.” This seems to imply, that the Court, deciding on the application for a new trial, is entitled to take into their consideration, what is necessary to the due understanding of the subject-matter of it, in all its bearings.

The following opinion was returned by Lord Cuninghame.

I concur generally in the preceding opinion, in so far as it recognises the competency of referring to the prior judgments or judicial statements in a cause, on motions to set aside verdicts as contrary to evidence—(the legitimate use and application of such references being always left to the Court)—while the party opposing this, seems to contend, that the Court can in no case where such a motion is under discussion, look into the previous judgments and proceedings, to guide them in the disposal of this particular motion. I conceive that the latter rule, if adopted, would be most inconvenient and injurious in practice, as well as contrary to the best precedents and principles on which jury trial is administered.

If the Court can in no case look into the prior judgments and proceedings in a cause, when a verdict is objected to as contrary to evidence, it would follow, as a matter of course, that the Court at least must set aside every verdict thought contrary to evidence,—though convinced, from proceedings before themselves in the same cause, that the verdict is not contrary to the justice and the legal claims of the party who has got the verdict. It has no doubt been added, that the Court, even after the verdict has been set aside, is not bound to grant a new trial. But neither of these propositions seem to me to be well founded.

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¹ Schuurmans and Son, July 18, 1832 (ante, X. 843)—Ralston, July 18, 1832 (ante, X. 848).

In the first place, I am not aware, that according to our practice, or according to the statutes introducing jury trial in Scotland, a verdict upon an issue once settled, can be set aside without a new trial following as a matter of course. It is believed that the English forms admit of verdicts being set aside by arrests of judgment, or in other ways not known in our system, without any trial following. But with us, verdicts contrary to evidence, or objectionable on any other ground, can only be extinguished by other verdicts obtained on new trial granted by the Court. Accordingly, in the statute passed in 1819, which is the last statute for regulating the forms of our jury trial (59 Geo. III. cap. 35, § 16), motions for setting aside “a verdict and granting a new trial” are referred to, as conjunctive and simultaneous.

In the next place, when a new trial is moved for (as it is here), on the ground of the verdict being contrary to evidence, it appears upon all the authorities, that the respondent has a right to meet that motion, by showing, either that the evidence as led, was such as to sustain the verdict,—or at all events, that from the nature of the case, as established by the record, and prior judgments, combined with the evidence disclosed on the trial, it would not be proper to grant a new trial, as it could or ought to lead to no other result, than the first verdict effects. On this subject, the quotation from the Lord Chief-Commissioner's valuable. Treatise on Trial by Jury, given in the preceding opinion, seems to me to be decisive. The authorities also quoted by his Lordship support the doctrine. Thus Lord Mansfield, in the case of Burton v. Thomson (1 Term Rep. 172), said, that “it does not follow by necessary consequence that there must always be a new trial granted in all cases whatsoever, where the verdict is contrary to evidence; for it is possible that the verdict may still be on the side of the real justice and equity of the case.” And a subsequent English case to the same effect, is reported under the following summary:—.“Where a jury have found a verdict for the plaintiff upon a presumption contrary to evidence, the Court will not grant a new trial, if the plaintiff be entitled to recover in conscience and equity.” Wilkinson v. Payne, 4 T. R. 486.

Now, how are the proper merits or justice of a case to be ascertained, but by looking to the record and previous judgments of the Court in the cause? Is not that the most authentic, and, in truth, the only satisfactory way of judging of “the real merits and equity” of any case?

Indeed, upon sound principle, it humbly appears to me, that the prior judgments in every cause should be held as known to the Judge who presides at the trial. Whatever might be the rule, when special issues were sent by the Court of Session to be tried by Jury Judges as a separate Court, the case is quite different now, when causes are conducted from beginning to end in the same Court, before which the trials proceed.

It is obvious to remark, that judgments or judicial statements in the record of the cause under trial, ought not to be viewed as ordinary facts, to be proved or authenticated like the decisions of foreign courts, or even like proceedings in another cause. On the contrary, it is thought that the Judge is entitled, and when requisite, is bound to tell the jury, of any prior judgments pronounced in the same case, bearing on the question at issue, as forming law applicable to the case under trial; and the counsel is entitled to found on them in argument, without viewing them as matters to be put in evidence in the ordinary way. Accordingly, in so far as my own experience as a counsel went, the record and prior judgments in the cause were, after the decision in Schuurmans' case, repeatedly founded on by respondents at jury trials, without any claim being made by the pursuer's counsel for a reply, on the footing of such citations being tantamount to the leading of evidence. If that rule is now to be reversed, it should be by Act of Sederunt specially abrogating the practice.

The preceding Judges have qualified their opinion by stating, that they do not think that these interlocutors and proceedings can be “referred to as evidence,” but only as affording means of illustrating and understanding the true import of the issue. But, with very great deference, I hesitate much to assent to the qualification here indicated. If a motion for a new trial may in general be met by a reply, that the verdict, on the whole, is agreeable to the real merits and justice of the case, I am greatly at a loss to see why the record and prior judgments in the same cause, may not be looked into, for evidence of a collateral fact, as well as of a finding in point of law, when both have a plain bearing on the merits of the case. For example, if the issue were, “Whether goods were furnished on a particular occasion to A?”—and if the evidence laid before the jury consisted only of proof that they were furnished to a certain third party, B, with certain circumstances deemed by the Court insufficient to connect him with the defender—which the jury nevertheless found against the defender, would it be contrary to any principle in our forms, when a now trial was moved, to look back to the record, for an admission by the defender, or perhaps for a judgment in the cause, finding that B was the defender's agent or servant, for whom he was responsible, though perhaps such admission or judgment was not quoted to the jury?

Many similar illustrations might obviously be given, but it is unnecessary. It is plain that cases may often occur, where the evidence obtained on a trial may be viewed by the Court as defective or unsatisfactory per se; and yet if the Judge's notes of the evidence be connected with prior judgments or statements on record, the real justice of the case may be so irresistibly demonstrated to lie with the party who has got the verdict, that it would be alike preposterous and oppressive to set aside the verdict, and grant a new trial.

This doctrine, instead of diminishing, or in any way affecting jury trial, will, in my opinion, tend to diminish objections to it, and be most acceptable to the country generally. So long as our forms remain as they are, it would, as I think, be peculiarly repugnant to the interest of litigants, and indeed to right practice generally, to prevent the Court from looking back to the record, prepared perhaps at great expense, to ascertain the real merits of a case, and the true bearing of a proof, objected to as incomplete or insufficient. Our records in jury cases may be superfluous, and if so, they should be abolished; they may be too cumbrous and prolix, and if so, they should be abridged; but it would be very strange, when a record has been prepared and closed, if it cannot be referred to for the purpose of showing that it contains admissions, or sets forth judgments which clearly support the verdict, and supersede the necessity of a new trial.

It has been strongly urged in this argument, that if the judgments and judicial statements previously on record can be cited to support a verdict, they are equally relevant to set it aside. But I am not aware of any great hazard that would ensue, or of any anomaly that would be introduced by this practice. If any case bad occurred, in which a jury had proceeded on evidence directly inconsistent with previous admissions on record of the party for whom the witnesses were called, or with final judgments in the cause, it does not appear that it would be a very hazardous precedent to allow the Court to look back to their own records in the same cause, to enable them to judge of the propriety of the verdict. The previous authorities applicable to questions of this nature, all tend to show, that Courts have never been over fastidious or scrupulous in receiving any materials to enable them to judge of the substantial merits of a case, when asked to grant a new trial. Hence affidavits by witnesses examined at the trial have been received. (See 4 Murray, 118 and 502; and 1 Bos. and Pull. Rep. p. 427.) But surely the record and judicial proceedings in the case, are at least entitled to as much weight with the Court as affidavits.

At the same time, it is supposed that every Court will require a very different sort of case to be made out for overturning a verdict from that which must be established to support it. The presumption of law must be with the verdict; the leaning of the Court must invariably be, to save parties as often as possible the expense of new trials; and therefore the case must be of rare occurrence, and only on the clearest demonstration of error, where the Court will give effect to any pleas, whether vouched by the prior record or not, to set aside a verdict.

Lords Fullerton, Moncreiff, Jeffrey, and Cockburn, returned the following opinion.

This case, which began by a petition and complaint for breach of interdict, and had been taken by appeal to the House of Lords, came at last to depend on the fact of the interdict having been broken or not; which question of fact was sent to be tried by a jury. The defenders led no evidence; and gained the verdict. The pursuers have moved to have the verdict set aside and a new trial granted. It is stated, and we understand accurately, that though the motion was originally rested partly on its being inconsistent with certain previous judgments in the cause, it is now confined exclusively to its being contrary to evidence.

In discussing this motion, the defenders insist upon a right to support the verdict as not contrary to evidence, by referring to certain judgments and proceedings which were not laid before the jury, or founded on, even in argument, by either party at the trial. And the question put to us is, Whether it be competent to refer ‘to the steps of procedure, and interlocutors in the petition and complaint, and also in the appeal regarding the same, although the same were not given in evidence or noticed to the jury who tried the cause?’ The question is not, Whether this be competent to one party more than to another, or in support of the verdict more than in opposition to it; but whether it be competent at all under such a motion? And this was plainly the proper question to put. Because if a verdict admit of being defended before the Court as agreeable to the evidence, by the introduction of such new matter, it must be equally liable to be impeached as repugnant to evidence by matter of a similar description. The point, therefore, is, Whether, when the Court is required to examine a case, in order to see if a verdict be, or be not, warranted by the evidence, it be always competent to either party to affect this question by the introduction of matter which was not before the jury?

There are occasions and objects in reference to which if may be regular and necessary to call the attention of the Court, not only to all the former proceeding in the cause, but even to occurrences, which did not take place till after the trial was over. Of these we are not speaking at present. Confining ourselves to what we understand to be the precise point before us, of a motion to set aside a verdict as against evidence, and resistance offered to this motion, by disputing the ground on which it rests,—that is, by denying that the verdict is against evidence,—we are very clearly of opinion that the introduction of interlocutors or proceedings, or of any thing else which is meant to operate as proof, yet which was not before the jury, is not only incompetent, but is repugnant to the principles of jury trial, and would lead to inextricable confusion and injustice.

Yet we really can say no more in defence, or in explanation, of this view, than that, when a verdict is attacked on the ground of its repugnance to evidence, and a Court is required to consider whether it be repugnant to it or not, the bare statement of this case implies that it is only the evidence adduced at the trial that the Court can look to. How can the conclusion drawn by the jury be said to be either right or wrong, except in reference to the proof on which they acted? How can a Court decide that a verdict was hostile, or was agreeable, to any evidence, but the evidence on which it was formed? Can any thing stronger be said in support of a verdict, than that the party who lost it can find no ground, except in new evidence, for impugning it? Or can any thing stronger be said against a verdict, than that it is only by new evidence that he who gained it can defend it?

This is virtually admitted by the defenders; because it is partly by maintaining (in opposition to the actual truth as put in the question to us) that the documents were constructively before the jury, that they claim a right to found upon them now. They say that it has been decided, in the two cases of Schuurmans and of Ralston, in July 1832, that the whole record, including the summons, defences, condescendence, answers, and whatever else the record may consist of, is always held to be before the jury; though not specially put in;—and that every part of this matter, though not put in, may be dealt with, both at the trial and in all subsequent stages, exactly as any one document, given in in the usual manner may.

We should exceedingly regret to find that any such principle had been established; because it humbly appears to us to be impossible that trials could be conducted fairly under it. We should think so, even though records contained the mere abstract propositions of fact or of law on which parties respectively rely. But they are directed by statute to exhibit “all facts and circumstances pertinent to the cause of action or to the defence;” and the construction which has been put practically upon these words, enables parties to frame their pleadings nearly as loosely, and with as minute exposition of details, and as copious in reference to evidence, as they please. Now the consequence of holding that the record, even if it were strictly framed, was virtually before the jury, would be, that it would be competent for all those engaged in the trial to found suddenly upon any atom that might be detected, or might be supposed to be detected, in the mass, without premonition or opportunity of explanation to any body else. A defender might rest his defence upon what he held to be an admission by his adversary, or upon his own construction of an interlocutor; and after having made a dexterous and unjust use of these, might say that, as he found them in the record, his referring to them was not leading evidence, and that the pursuer had no right to explain. A pursuer might introduce similar matter on the same ground for the first time in his reply; and give the case a new turn by evidence never heard of before. The Judge, in like manner, might rest his view on some unobserved circumstances of fact which struck his eye on looking at the record. And we do not see why even the jury, who may require to have the written evidence with them when they retire, may not found upon some fancied and undiscussed discovory of their own, And the Court, in afterwards reviewing cases on a demand to have the verdict set aside as against evidence, instead of justly appreciating the judgments of juries according to the means they had of forming them, may try them upon documents which the jury never saw, and on views founded on these documents, which never were suggested to them.

It is no answer to say, that the parties know what is on the record, and must be supposed to come to trial prepared upon every part of it: Because, 1st, No party can over be so ready upon every circumstance, even in the simplest record, as that he does not require to have his attention specially directed to those parts that are to be specially used against him. 2d, Whatever knowledge he may have of what is truly in the record, he can never know beforehand what his antagonist or others are to argue or assert that they see in it. 3dly, Even though he was previously told the precise passage which he was to guard against, he can make no proper use of this information till he hears in Court the exact use that is made of it. It is therefore essential to justice, that each piece of evidence be laid before the jury, or noticed at least, and discussed formally at the proper time before them; and there is no ground for any liberation from this most necessary rule, in favour of any thing, merely because it may have pleased a cunning pleader to put it, for the very purpose, into his record.

Accordingly, we are not satisfied that either of the causes referred to were meant to sanction any deviation from this principle.

When trials were conducted before a separate tribunal, the rule that all written evidence must be lodged eight days before the trial was enforced, and applied even to processes, including the records; and several parts of processes required moreover to be proved. But after trials took place in the Court of Session, this became unnecessary; and all that was held in the case of Schuurmans was, that the record, being already in the hands of the Court, was liable to be referred to by each party. The Lord President, who tried that case, merely said, “As the Jury Court is now incorporated with the Court of Session, I hold that the record is already in Court, and may be referred to by both parties.” We concur in this. The record may be referred to. But his Lordship does not say that it may be referred to as evidence, in any way, or at any time that each party pleases, or without being given regularly in, or without the party who gives it in, telling what part he founds upon, and to what effect. Still less does his Lordship say any thing to warrant the idea that the record is to be held as evidence, without having been referred to, or at all noticed, at the trial. But the question put to us is, if certain things can be referred to now, “though not given in evidence or noticed to the jury?” The reporter certainly makes the Lord Justice-Clerk, who tried the case of Ralston, go a step farther; for his Lordship is reported to have said that “The whole of the proper record in the cause may be referred to at the trial without being specially put in.” Whether this report be correct, or whether any particular meaning was put upon the word specially, we do not know; but if it really was the view of his Lordship and the other distinguished Judge who was present on that occasion, that every thing in the record is constructively before the jury as evidence, without being either referred to or noticed in their hearing, we are compelled to dissent from this doctrine. We do not see how even the law of evidence can be observed under such a system; for if the record be evidence (which it must be if it be before the jury) virtually, and without being given in, what opportunity is afforded for objecting to any part of it as inadmissable?

It will be observed, moreover, that even the principle ascribed to this case of Ralston does not necessarily reach the present question. In Ralston's case, the rule is confined to the “proper record.” The question before us relates to the competency of referring to “the steps of procedure, and interlocutors in the petition and complaint, and also in the appeal regarding the same.” Whether all these be parts of the proper record in this cause or not, not having seen the record, we do not know.

We have said that, in proceedings at the trial, or after it, it may often be competent to refer the Court to matters which were properly withheld from the jury. This may be necessary for various purposes; such as to enable the Court to understand the case—to show that there never should have been any trial at all—to establish a case of law which supersedes the trial that has been had, or renders any future one useless—to arrest judgment on the verdict ( Clark v. Thomson, Murray's Reports, vol. i. p. 195)—and generally for any other object (including even a new trial, when it is moved for on this particular ground) essential to the justice of the case. In particular, a party against whom a verdict is sustained as not contrary to evidence, is not without his remedy if he can show that, in the circumstances, the verdict ought not to be acted on. One opportunity presents itself when judgment on the verdict is moved for. A verdict, though set aside as against evidence, need not be followed by a new trial. Though the verdict is set aside, it is still open to the Court to consider, whether there may not be other facts in the cause which render it unnecessary to send the case again to trial. On the other hand, though a verdict be sustained, it does not follow that decree must be pronounced in consequence of it, if this would be against the justice of the case. These are all occasions on which the Court is unfettered by any special rule, and in which justice cannot be reached, or the law of the case administered, unless the whole circumstances and proceedings be looked at. But reversing or sustaining verdicts, on the ground of their being repugnant or agreeable to evidence, is quite a different proceeding, and one which depends on quite different principles. Parties will never come duly prepared to trials so long as they believe that they may take their chance with the jury, and keep some of their proof in reserve for the Court; nor will juries ever be duly impressed with the responsibility and importance of their function, while they know, that instead of having their official characters and decisions judged of by the evidence they are permitted to see, their verdicts may be impugned or defended upon proof which they never heard of.

Accordingly, we confine our opinion of the incompetency of referring to these interlocutors and steps of procedure, to the particular case before us; in which there is nothing except a motion for a new trial on the ground that the verdict is against evidence; and in which, as we understand the question put to us, these things are insisted to be referred to, in aid or supplement of the proof adduced on the trial, in the motion for setting aside the verdict on that precise ground.

Whether this be the true purpose for which their introduction is struggled for here, is a point which the Court where the case depends must determine. So far as we can judge from the defenders' own explanations in their case, we are induced to think that this is their real object. Their argument seems to be, that the pursuers are wrong in their construction of the interdicted boundary mentioned or referred in the issue; and that they “will demonstrate by express declaration (of the House of Lords) that these pools were not comprehended within the interdict.” They elsewhere explain that the judgments and proceedings which they wish to found upon, “would remove the possibility of doubt about the true extent and importan d subsistence of the interdict.” Now, if there was a legal error by the Judge who tried the cause, in his construction of the issue, or any failure by him to instruct the jury upon its import; or if the jury, misled by the pursuers, mistook it;—all these plainly are cases for which a motion for a new trial, grounded solely on the contrariety of the verdict to the evidence, is not the proper remedy. But in reference to such a motion, we see no object that the defenders can have, except what resolves into a desire to influence the Court's view of the facts, by new proof. When a defender is accused of breach of interdict, there is surely nothing on which he ought to be better prepared at his trial, than to show that the place where he did, or was said to have done, the wrong, was beyond the sphere of the interdict; especially when he is informed, as the defenders were here by the record, of the exact spot which his accuser holds to be the locus delicti. The “extent and import of the interdict” was one of the most obvious points of fact on which it was the business of the defenders to instruct the jury; and if they allowed the jury to take their notions of the localities from the statements of the pursuers, when they, by producing previous interlocutors and steps of procedure, could have demonstrated that the pursuers were wrong, they have themselves to blame for not having done so; and it is incompetent to correct this error by producing that proof now to the Court, when the Court is merely reviewing the verdict in connexion with the evidence on which it was actually pronounced.

It is possible that we may be in a mistake with respect to the exact use now sought to be made of these interlocutors and proceedings; for no positive information is given about it. To this extent, therefore, we speak hypothetically. All that we are anxious about is the general rule; as to which we are clear, viz. That in judging of the alleged contrariety of a verdict to evidence, no writing can competently be laid before the Court except what had been put in at the trial; and that the contents of records cannot be held to have been put in, so as to satisfy this principle, merely because the records were before the Court, if they had not been given in evidence, or at all noticed to the jury.

On resuming the cause, along with these opinions, the Dean of Faculty moved for leave to address an argument to their Lordships of the First Division, on the subject discussed in the cases, observing that even if it were only to the effect of showing that the cause should still be re-transmitted to the consulted Judges for farther consideration, he had a right to be heard. Robertson, for the defenders, opposed this, as an anomalous procedure: After the opinions of the consulted Judges had been taken, the matter was wholly in the hands of the Court; and it was irregular to allow an argument at such a stage that it must necessarily be of the nature of a reply to the opinions of that part of the Court who were adverse to the view of each respective pleader.

The Court allowed counsel to be heard, and accordingly, the Dean of Faculty was heard upon the question argued in the cases, and Robertson was heard in answer. The Dean of Faculty stated, inter alia, that the views of Lord Mansfield, which had been referred to in the opinions, were now altered by the case of Tatham; and Robertson contended, inter alia, that as there was a general verdict returned, exhausting the cause, there was no alternative on the part of the Court but to set aside the verdict and grant a new trial, or to refuse the motion.

The following opinions were then delivered.