Charleson v Stewart
| Jurisdiction | Scotland |
| Judgment Date | 09 January 1900 |
| Date | 09 January 1900 |
| Docket Number | No. 77. |
| Court | Court of Session |
Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.
Process—Jury Trial—Objection to part of defender's averments as irrelevant.—
In an action of damages raised in a Sheriff Court the Sheriff-substitute sustained an objection to the relevancy of certain of the defender's statements, and quoad ultra allowed a proof. The pursuer having appealed for jury trial the Sheriff's interlocutor was recalled of consent, and an issue approved.
Opinions that the question of the relevancy of the defender's statements should be left to the presiding Judge at the trial.
Miss Jessie Charleson raised an action of damages in the Sheriff Court at Wick against David Stewart for breach of promise of marriage.
The defender denied having promised to marry the pursuer, and further in a statement of facts averred,—(Stat. 4)‘Several of the pursuer's relatives, both on the father's and mother's side, have suffered, and suffer, from insanity. … The pursuer failed to inform the defender of this taint of insanity in her family.’
The pursuer denied these averments, and pleaded,—(1) The averments in statement of facts No. 4 for the defender are irrelevant.
On 30th October 1899 the Sheriff-substitute (Mackenzie) sustained the first plea in law for the pursuer, and quoad ultra allowed to both parties a proof of their averments.
The pursuer having appealed for jury trial, the defender argued that the averments in question were relevant,1 and that, in any event, the interlocutor of the Sheriff-substitute should be recalled, and the whole case sent to trial, the question of the relevancy of the said averments being left to the presiding Judge.2
The pursuer consented to the interlocutor being recalled, while submitting that that was unnecessary, in respect that it had fallen in consequence of the appeal for jury trial, which was equivalent to advocation.3
Lord President.—I understand that no objection is now offered to our recalling the Sheriff-substitute's interlocutor of 30th October 1899, but however that may be, I am of opinion that it would be a very inconvenient course to send the case to trial upon the ordinary issue allowing the Sheriff-substitute's finding to stand. The case ought, in my judgment, to be sent to trial in the ordinary way, without any expression of opinion as to the relevancy of the averments in question, and it will be for the Judge who presides at the trial to give a direction as to the...
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