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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Sorley v. Archibald [1921] ScotLR 31 (05 November 1921)
URL: http://www.bailii.org/scot/cases/ScotCS/1921/59SLR0031.html
Cite as: [1921] ScotLR 31, [1921] SLR 31

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SCOTTISH_SLR_Court_of_Session

Page: 31↓

Court of Session Inner House First Division.

(Single Bills.)

[Sheriff Court at Glasgow.

Saturday, November 5. 1921.

59 SLR 31

M'Sorley

v.

Archibald

Subject_1Process
Subject_2Removal to Court of Session for Jury Trial
Subject_3Remit to Sheriff
Subject_4Conclusions for (a) Damages for Rape, and (b) Decree of Affiliation — Motion to Restrict Conclusions by Abandoning Conclusion for Affiliation — Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), sec. 30.
Facts:

A Sheriff Court action concluding for (1) damages for alleged rape, and (2) decree of affiliation and aliment, having been remitted to the Court of Session for jury trial under section 30 of the Sheriff Courts (Scotland) Act 1907, the pursuer, in respect that the conclusion for paternity was unsuitable for jury trial, moved for leave to abandon the second conclusion and to limit the action by minute of restriction to the conclusion for damages. The Court without deciding the admissibility of the proposed restriction, but in respect that its admission would have the effect of exposing the defender to a double trial of the same question before two separate tribunals, remitted the case to the Sheriff for proof.

Headnote:

The Sheriff Courts (Scotland) Act 1907 (7 Edw. VII, cap. 51), sec. 30, is quoted supra, page 1.

Mrs Mary Rennie or M'Sorley brought an action in the Sheriff Court at Glasgow against John Archibald concluding for (1) damages for alleged rape, and (2) decree of affiliation of an illegitimate child, inlying expenses, and aliment of the child. The pursuer required the cause to be remitted to the Court of Session for jury trial.

On 5th November 1921, in Single Bills of the First Division, counsel for the pursuer, in respect that the second conclusion of the initial writ could not appropriately be made the subject of jury trial, moved for leave to abandon the said conclusion by minute of restriction, and cited the following authorities:—Judicature Act 1825 (6 Geo. IV, cap. 120), sec. 10; Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 29; Sheriff Courts (Scotland) Act 1907, sec. 30, and Rules 79 and 81; C.A.S., 1913, B, i, 6, and D, iv, 5; Mackay's Manual of Practice, p. 251; Maclaren's Court of Session Practice, p. 458; Paxton v. Brown, 1908 S.C. 406, 45 S.L.R. 323; Wilson v. Magistrates of Mussel burgh, 1868, 6 Macph. 483; Stewart v. Greenock Harbour Trustees, 1868, 6 Macph. 954; Duncanson v. Anderson, 1908, 15 S.L.T. 684.

Argued for the defender—Even if restricted to the first conclusion, the case was unsuitable for jury trial. Partial abandonment was contrary to the practice of the Court— Hay v. Earl of Morton, 1862, 24 D. 1054, aff. sub nomine White v. Lord Morton's Trustees, 1866, 4 Macph. (H.L.) 53, at pages 54 and 59—and if admitted would in this case have the effect of exposing the defender to a double trial of the same question before two separate tribunals.

 Judgment:

Lord President—The point which has been raised is attended with difficulty in reference both to the Judicature Act and to the practice of this Court in the matter of the admission of minutes of restriction. It is, however, unnecessary to come to a decision upon it, because, assuming that we had a discretion to give effect to the motion which Mr Crawford has made to us, there still remains the question whether in the circumstances of the case that discretion could be exercised with fairness or propriety in relation to the position of the defender. It is clear that all the issues of fact presented under the head of the claim of damages for seduction, would (along with others, no doubt) be involved in the issues presented under the conclusions with regard to paternity. Accordingly, to grant such a motion as Mr Crawford has submitted to us would be to put the defender to a double trial of the same question before two different tribunals. That is a hardship for which no right or interest on the part of Mr Crawford's client affords any sufficient warrant, and it seems to me therefore that the proper course is to send the case back to the Sheriff for proof.

Lords Mackenzie, Skerrington, and Cullen concurred.

The Court refused the motion to restrict the conclusions of the action, and remitted the cause to the Sheriff-Substitute to proceed.

 Counsel:

Counsel for Pursuer— Crawford. Agent— R. J. Calver, S.S.C.

Counsel for Defender— Duffes. Agents— J. & A. F. Adam, W.S.

 1921

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URL: http://www.bailii.org/scot/cases/ScotCS/1921/59SLR0031.html