Scottish Court of Session Decisions

On 16th January an issue for the trial of an action of damages for slander was approved. On 4th February the trial took place before Lord Moncreiff, when the jury returned a verdict for the pursuer. On 3rd March the Second Division granted a new trial, which was fixed to take place before the Lord Justice-Clerk on Monday, 14th. June. On the morning of Saturday, 12th June, the defender's agents received from the pursuer's agents a copy of a note to the Lord Justice-Clerk on behalf of the pursuer, which, inter alia, stated—“The pursuer has been unable to procure further evidence in the cause than that upon which he procured his former verdict, and in these circumstances he accordingly begs leave to state that he does not intend to proceed with said new trial, and consents to absolvitor of the defender with expenses.” The pursuer's agents stated in their letter sending the copy-note that the principal note would be lodged with the Clerk of Court, and moved on that day. This was not done, and the pursuer's counsel appeared and informed the Court that after the said note had been intimated the pursuer had himself refused to sign it or allow it to be signed, and that his counsel and agents had consequently ceased to act for him. The diet for the trial of the cause was accordingly discharged, and the trial did not take place on Monday 14th June. No appearance was made for the defender on 12th June, and the jury was countermanded without the defender's consent.

In these circumstances a note for the defender was presented to the Lord Justice-Clerk, in which the facts were set forth as above narrated, with this exception, that the reason why the note for the pursuer was not presented on 12th June, as explained by the pursuer's counsel on that date, was not given, and it was stated that the defender's agents had been informed by the Clerk of Court that no such note had been lodged, but that on that day the trial had been countermanded on the motion of counsel for the pursuer, and that no notice of that motion had been given to the defender. It was further stated that in consequence of the trial being countermanded without due notice to the defender, considerable expense had been incurred by him; that his witnesses had been cited for Monday 14th June, and their attendance had to be countermanded; that counsel had been instructed, and that the defender himself had come from Tomintoul, Banffshire, to attend the trial. The note concluded with a prayer that his Lordship would move the Court to assoilzie the defender with expenses, or otherwise to find the pursuer liable in the expenses incurred by the defender in preparing for trial on 14th June, and to ordain that these expenses should be paid as a

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condition-precedent to his proceeding to a new trial.

The note was enrolled in the Single Bills for 16th June, and on 14th June the defenders sent a registered letter to the pursuer enclosing a copy of the note, and intimating that the case had been enrolled for 16th June, when the Court would be moved in terms thereof.

The Act of Sederunt of 16th February 1841 enacts as follows:—Sec. 25—“That until the jury is empanelled and sworn to try a cause, it shall be competent to apply to put off the trial on account of the unavoidable absence or sickness of a material witness, or for other sufficient cause to the satisfaction of the Court, and supported by oath or affidavit if the Court snail so require, or in vacation by the judge before whom motions are to be heard as before directed, and upon payment of such expenses as shall have been incurred by the opposite party in consequence of the delay of the trial. But if the inability of a material witness to attend at a trial, or any other cause for putting it off becomes known to the party during the session, the motion to put off the trial must be made in the session upon notice to the opposite party, and copies thereof being lodged as aforesaid, and such motion must be supported by oath or affidavit if the Court shall so require.” Sec. 46—“That if it shall be made to appear to the Court that a party has abandoned his suit, or if the pursuer or the party appointed to stand as pursuer, shall not proceed to trial within twelve months after issues have been finally engrossed and signed, the Court shall proceed therein as in cases in which parties are held as confessed, unless sufficient cause be shown for the delay to the satisfaction of the Court. And in case either party shall not appear at the trial of a cause after due notice of trial has been given by the opposite party, the party appearing, if pursuer in the issue, shall be entitled to lead his evidence and go to the jury for a verdict; and if the party appearing be the defender in the issue, he shall be entitled to obtain a verdict in his favour without leading evidence, but if the party appearing shall decline to proceed in this manner, then the judge presiding at the trial shall certify to the Division the fact of the other party not appearing, and the Division shall thereupon proceed as in cases in which parties are held as confessed, unless it shall be shown to the satisfaction of the Court that the failure of the party to appear at the trial was occasioned by some sufficient cause.”

The Act of Sederunt of 24th February 1846 enacts, inter alia, as follows:—“That as soon as the issue or issues in the cause are finally engrossed and lodged in the office in the Register House, it shall be competent to the pursuer in the issue or issues to give notice of trial; and if the pursuer does not give notice of trial within ten days from the time the said issue or issues are so lodged as aforesaid, or, after giving notice of trial, countermands the same and does not renew the notice of trial within ten days after such countermand, it shall thereafter be competent to the defender to give notice of trial to the pursuer, and also to countermand such notice of trial in like manner as is competent to the pursuer. But if the defender countermands then the pursuer's right to take the lead shall recur for other ten days from the date of such countermand.… And the party who shall be served with a countermand shall be entitled to such expense as may have been incurred in consequence of such notice of trial, and which may not be available for the trial of the cause when it afterwards takes place.”

The Court of Session Act 1850 (13 and 14 Vict. cap. 6), section 40, enacts as follows:—“Where an issue or issues is or are approved as aforesaid, it shall be competent to the Lord Ordinary in the cause, on the motion of either of the parties, to appoint a time and place for the trial of such issue or issues, such time being as soon after the date of such approval as with reference to the proper trial of such issue or issues conveniently may be, and, except upon special cause shown, not later than three weeks from the date of such motion.”…

On 16th June counsel for the defender moved in terms of the prayer of the note. and argued—When it appeared that a pursuer had abandoned his suit the Court was bound to hold him as confessed—Act of Sederunt, 16th February 1841, section 46. Although it had been held that the provisions of that section as regards delay for twelvemonths did not now apply in respect of the right given to either party by the Court of Session Act 1850, section 40, to move for a time and place to be appointed for the trial of the cause— Macfarlane v. Beattie & Sons, July 1, 1892, 19 R. 953 (see also Baird v. Cornelius, July 16, 1881, 8 R. 982)—it had been decided that the first clause of section 46 regarding abandonment was still in force— Boss v. Mackenzie, June 26, 1889, 16 R. 871. It appeared here that the pursuer had abandoned his cause. Apart from that he was at least bound to pay the expenses which had been caused to the defender by the countermand as a condition-precedent to his being allowed to proceed with a new trial—Act of Sederunt, 16th February 1841, section 25.

There was no appearance for the pursuer, but the counsel who had formerly represented him appeared and stated in answer to inquiry from the bench that he had no instructions, but that he understood the agents who formerly represented the pursuer had ceased to act for him.

The Court intimated that they would dispose of the case on the 18th of June, and directed intimation to be made to the pursuer.

On 16th June the defender's agents sent a registered letter to the pursuer intimating that the case bad been before the Second Division, and that their Lordships were to give their decision on 18th June.

Copies of the two registered letters referred to were lodged in process. Post Office receipts for the letters were appended.

On 18th June counsel for the defender

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appeared and stated that no answers had been received to the letters of intimation sent to the pursuer.

There was no appearance for the pursuer,