LACHLAN M'INTOSH v AFFLECK FRASER (Court of Session)

No action of damages lies in point of law against a juryman, for any act done by him sitting in judgment in the jury-box, in the High Court of Justiciary, although accompanied by an averment of malice. The action, therefore, is not relevant on the face of the summons, and cannot be entertained.

No objection was stated at the time to any of the proceedings, and no motion was made on the part of the prosecutor, in order to have the verdict recorded in any form different from that which was done under the authority of the Court. Neither was any objection stated by the prosecutor, nor by any of the jury to the defender, acting as chancellor, which he accordingly did, with the consent of all concerned, and the allegation of his having acted maliciously is neither relevant nor true.

There is no action of reduction for setting aside the verdict, or any of the proceedings, which are both unchallenged and unchallengeable. The summons, upon the whole, does not contain any relevant or intelligible ground of action, and there is nothing which can be made the subject of an investigation before a jury in this case, nor any grounds upon which the defender can be subjected in damages.

‘In respect the verdict in the criminal action, mentioned in the summons, was returned in the Circuit Court of Justiciary, and recorded by the order of that Court, the Lord Ordinary finds that it is incompetent in this Court to inquire whether it was illegally or irregularly returned or recorded, in consequence of the proceedings of any juryman after he had been impannelled and sworn as one of the jury, and which took place in the course of the trial; therefore dismisses the action, and decerns; finds the defender liable in expenses,’ &c.

Lord Corehouse, Ordinary. Act. D. M'Neil. Greig & Morton, W. S. Agents. Alt. P. Robertson. Hugh Fraser, W. S. Agent. S. Clerk.