Court of Session Act 1868

V.—JURY TRIAL.

34 Exceptions taken at a Jury Trial may be insisted in, either by Motion for new Trial, or by Bill of Exceptions.

When an Exception is taken in the Course of a Jury Trial, a Note thereof shall he taken by the Judge, or, if he shall so direct, or the Party excepting shall think proper, a Note thereof shall he written out, and signed by such Party or his Counsel, and also by the Judge at the Time; and such Exception may be made the Ground of an Application to set aside the Verdict, either by Motion for a new Trial, or by Bill of Exceptions.

35 Form of Bill of Exceptions; Evidence need not be set forth at Length in the Bill.

The Bill of Exceptions (which may he subsequently prepared, and of which Notice shall be given as in the Case of a Motion for a new Trial,) shall consist of a distinct Statement of the Exception or Exceptions so noted, with such a Statement of the Circumstances in which the Exception or Exceptions were taken (including, if necessary, a Statement of the Purport of the Evidence, or Extracts therefrom, so far as bearing upon such Exception or Exceptions, but without any Argument,) as, along with the Record in the Cause, may enable the Court to judge of such Exception or Exceptions'; and, unless the Party excepting shall choose, or the Judge at the Trial, or the Court at the Discussion of the Bill, shall so direct, it shall be unnecessary to print or submit to the Court the Notes of Evidence or the Documentary Evidence adduced at the Trial; and when such Notes and Documents are submitted to the Court, they shall form no Part of the Bill of Exceptions ; and in discussing a Bill of Exceptions it shall be competent for either Party to refer to the Record, and to every Document produced and put in Evidence at the Trial, and the Notes of Evidence at the Trial may be produced and founded on at any Time.

36 Verdict may be taken subject to the Opinion of the Court on a Point reserved.

The Judge at the Trial may direct the Jury upon any Matter of Law (subject to the Opinion of the Court upon such Direction), and with Liberty to either Party to move the Court to enter the Verdict for such Party, although returned against him, if the Court should be of opinion that such Direction was erroneous, and that such Party was truly entitled to a Verdict. The Opinion of the Court upon any Direction so given may be obtained upon Motion to enter the Verdict for the Party moving; and if the Court shall be of opinion that the Direction was erroneous, and that the Party moving is truly entitled to the Verdict in whole or in part, they shall direct the Verdict to be entered for him in whole or in part, either absolutely, or on such Terms as they may think fit; otherwise they shall refuse the Motion, or they may, if necessary, set aside the Verdict and order a new Trial: Provided also, that in such Applications, as well as in Motions for a new Trial, it shall not be necessary to print the Notes of the Evidence for the Use of the Court, but the Judge's Notes may be produced at any Time, if required.

37 Evidence may of Consent be taken in Shorthand.

Where the Parties agree, the Evidence at a Jury Trial taken in Shorthand, and extended by the Shorthand Writer, may, with the Consent of the Judge, be substituted for the Judge's Notes of the Evidence for all Purposes ; and in such Cases it shall not be competent to ask for the Judge's Notes of Evidence.

38 Special Case may be substituted for Special Verdict.

It shall he lawful to substitute a Special Case signed by Counsel for a Special Verdict, and thereupon to discharge the Order for Trial, or the Jury, if one has been empannelled, without returning a Verdict; and such Special Case shall have the like Force and Effect as a Special Verdict.

39 Abandonment of Action in the course of a Trial.

Any Action may, with Leave of the Judge, he abandoned on the Conditions contained in the Tenth Section of the Act Sixth George the Fourth, Chapter One hundred and twenty, and relative Act of Sederunt, Section One hundred and fifteen, in the course of a Trial at any Time before the Judge has commenced to charge the Jury, or, where there is no Jury, at any Time before the Judge has made Avizandum with the Evidence: Provided that such Abandonment shall not be competent without the Leave of the Judge, who shall be of opinion that it is just and proper in the Circumstances : Provided further, that in granting such Leave the Judge shall specify the Time within which the Expenses shall be paid to the Defender; and if the Expenses shall not be paid within such Time the Defender shall be entitled to be assoilzied from the Conclusions of the Action, with Expenses.

40 Pursuer recovering less than 5l. of Damages not to recover. Expenses if the Judge shall certify.

Where the Pursuer in any Action of Damages in the Court of Session recovers by the Verdict of a Jury less than Five Pounds, he shall not be entitled to recover or obtain from the Defender any Expenses in respect of such Verdict, unless the Judge before whom such Verdict is obtained shall certify on the Interlocutor Sheet that the Action was brought to try a Right besides the mere Right to recover Damages ; or that the Injury in respect of which the Action was brought was malicious; or, in the Case of Actions for Defamation or for Libel, that the Action was brought for the Vindication of Character, and was in his Opinion fit to be tried in the Court of Session.

41 Provision for Payment of deficient Stamp Duty pursuant to Judge's Certificate to be final.

No Document tendered in Evidence at any Trial or Proceeding in the Court of Session (and which at the Time when the same is tendered might lawfully be stamped on Payment of a Penalty) shall be rejected by reason of the Omission to affix a Stamp thereto, or by reason of the Insufficiency of the Stamp ; provided the Party tendering the same shall, before the Conclusion of such Trial or Proceeding, pay into Court such Sum as the Judge shall certify to be the Amount of Stamp Duty or of additional Stamp Duty chargeable thereon, with the Penalty required by Statute, and an additional Penalty of One Pound ; and the Deliverance of the Judge that the Stamp upon any Document is sufficient, or that such Document does not require a Stamp, shall not be subject to Review.

42 Clerk to remit the Duty, &c. to Commissioners of Inland Revenue.

Every Sum so paid for Stamp Duty and Penalty, including such additional Penalty, together with such Document and the Certificate of the Judge written thereon, shall immediately after the Trial be transmitted by the Clerk of the Process to the Commissioners of Inland Revenue, who shall cause the said Document to be impressed with a denoting Stamp corresponding to the Amount of Duty mentioned in the Certificate, and received by them, and shall return the Document with all convenient Speed to the Clerk.

43 Certain Exemptions from serving as Jurors abolished.

All Exemptions from Liability to serve as Jurors in Scotland depending on any Act passed subsequently to the Act Sixth George the Fourth, Chapter Twenty-two, are hereby abolished.

44 In Civil Causes Juries to consist of Eight Common and Four Special Jurors.

In all Civil Causes appointed to be tried by Jury the Jurors for the Trial of any Cause shall be chosen in open Court by Ballot from the List of Persons summoned; and for that Purpose the Clerk of Court shall cause the Name and Designation of each Juror to be written on a separate Piece of Paper or Parchment, all the Pieces being of the same Size, and shall cause the Pieces to be rolled up as nearly as may be in the same Shape, and the Names of the Special Jurors shall be put together into One Box or Glass, and the Remainder into another, and being respectively mixed, the Clerk shall draw out the said Pieces of Paper or Parchment One by One from both Boxes or Glasses in the Proportion of One from the Box containing the Names of the Special Jurors, and Two from the other Box; and if any of the Persons whose Names shall be so drawn shall not appear, or shall be challenged with or without Cause assigned, and be set aside, then such further Number shall be drawn until the Number required for the Trial shall be made out; and the Persons so drawn and appearing, and being sworn, shall be the Jury to try the Cause, and their Names shall be taken down and recorded, according to the present Law and Practice; but providing that when Challenges are made, and Jurors set aside, their Places shall be filled up with other Names, by drawing by Ballot as aforesaid from the Box or Glass containing the Description of Jurors challenged respectively.

45 Mode of returning Jurors.

The Number of Jurors to be cited for the Trial of any Cause or Causes appointed to be tried at Edinburgh, or at any Circuit Town (where a Special Diet shall be fixed for such Trial), shall be such as is specified in the Act Fifty-fifth George the Third, Chapter Forty-two, and a List of such Jurors shall be returned by the Sheriff of Edinburgh, or of any other County or Counties, as provided by the Act Sixth George the Fourth, Chapter Twenty-two, but so that One Third of the Number of Jurors required, or, if the Number required cannot be divided equally into Thirds, a Number as near as may be, more or less, at the Discretion of the Sheriff, shall be Persons qualified as Special Jurors, and shall be distinguished in the Return accordingly; provided that in the event of the List to be taken from the General Jury Book, as provided in the said Act, not being found to contain the said Proportion of Special Jurors, the Deficiency shall be supplied by Names to be taken from the Special Jury Book.

46 Provisions for Trial of Civil Causes by Jury at Circuit.

Where a Cause is appointed to be tried at any Circuit Town in any Period of Vacation or Recess, and no Special Diet is fixed for such Trial, it shall be lawful for either of the Judges presiding at the Sittings of the Circuit Court of Justiciary in such Circuit Town to try the same, and such Trial may proceed either at the same Time with the Sittings of the said Circuit Court of Justiciary, or at the Termination thereof; and where a Cause is so tried it shall not be necessary that a separate List of Jurors shall be returned for the Trial thereof, but the Jury shall be chosen from the List of Jurors summoned to attend the Circuit Court of Justiciary, who shall be bound by their Citation to serve, if required, at the Trial of all Civil Causes for which no Special Diet of Trial shall have been appointed; but notwithstanding the Provisions herein contained it shall be competent for any Judge of the Court of Session to preside at the Trial of any Civil Cause which may fall to be tried during the Sittings of any Circuit Court of Justiciary, or at the Termination thereof.

47 Jurors to be cited by registered Post Letter.

The present Mode of citing Jurors for the Trial of Civil Causes shall be discontinued, and in place thereof the Sheriff Clerk of the County of Edinburgh, where the Trial is to take place at Edinburgh, or the Sheriff Clerk of the County in which any Juror is to be cited, where the Citation is for a Trial at a Circuit Town, or his Depute, shall fill up and sign a proper Citation addressed to each such Juror, and shall cause the same to be transmitted to him in a registered Post Letter, directed to him at his Place of Residence as stated in the Roll of Jurors; and a Certificate under the Hand of such Sheriff Clerk or his Depute of the Citation of any Jurors or Juror in manner herein provided shall have the like Force and Effect as an Execution of Citation according to the present Law and Practice.

48 Verdicts may be returned by a Majority.

A Jury may at any Time, being not less than Three Hours after it has been enclosed, return a Verdict by a Majority of its Number.

49 Remuneration of Jurors.

The Remuneration to be allowed to Jurors empannelled at the Trial by Jury of any Civil Cause shall be at the Rate of Ten Shillings to each Juror for each Day, or Part of a Day, during which such Juror shall be empannelled upon such Trial.

50 Inferior Court Agents to act at Jury Trials on Circuit.

At the Trial of any Civil Cause at a Circuit Town any Agent qualified to practise in the Sheriff Court of any County comprised within such Circuit may attend such Trial as sole Agent in the Cause, and shall be allowed for his Attendance, and for all necessary Business performed by him in connexion with such Trial, the same Pees as are allowed to Agents in the Court of Session.