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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Carey v. Carey's Trustees and Others [1912] ScotLR 982 (19 July 1912)
URL: http://www.bailii.org/scot/cases/ScotCS/1912/49SLR0982.html
Cite as: [1912] SLR 982, [1912] ScotLR 982

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SCOTTISH_SLR_Court_of_Session

Page: 982↓

Court of Session Inner House First Division.

(Single Bills).

Friday, July 19. 1912.

[ Lord Dewar, Ordinary.

49 SLR 982

Carey

v.

Carey's Trustees and Others.

Subject_1Process
Subject_2Jury Trial
Subject_3Postponement of Trial
Subject_4Material Witness Abroad — Address of Material Witness Unknown to Pursuer — Act of Sederunt, November 19, 1910.
Facts:

The pursuer in an action which had been remitted by the Lord Ordinary to the sittings for jury trial, moved for postponement of the trial on the ground that one material witness was abroad, that the address of another material witness was unknown to the pursuer, and that neither of these witnesses would be available on the day fixed for the trial.

Held that these were not sufficient grounds for postponement, and the motion refused.

Headnote:

William Carey, pursuer, brought an action against the trustees of the late Frederick Charles Carey and others, defenders, for reduction of a will executed by the said Frederick Charles Carey. The summons was signeted on 27th January 1912 and called on 20th February. On 19th March the production was held satisfied and the adjustment continued until 14th May. Issues were approved on 22nd May, when a diet of trial was fixed for 21st November. On 27th June the defenders moved the Lord Ordinary (Dewar) to remit the case to the sittings for trial. This motion was opposed by the pursuer, but was granted by the Lord Ordinary, and the trial was thereafter fixed for 26th July. On 19th July the pursuer moved in Single Bills for postponement of the trial on the ground that two material witnesses would not be available if the trial took place on the date fixed, as the one was in Switzerland and he was unable to communicate with the other, who was of roving habits, and whose present address was unknown to him. The motion was opposed by the defenders.

 Judgment:

Lord President—This is a motion for the postponement of a trial which has been fixed for the sittings and was to have been tried next Friday. As your Lordships are aware, the practice in jury trials has been very much modified by a recent Act of Sederunt, which swept away a great deal of the somewhat cumbrous and antiquated procedure which formerly obtained, and under the present Act of Sederunt the general scheme for the disposal of jury trials—a scheme which I may say was entirely conceived in the interest of the public—is that jury trials should if possible be tried by the Lord Ordinary. If, however, the Lord Ordinary should be unable to give a day for the trial before the next ensuing sittings, then it is intended the trial should take place at the sittings in order to avoid delay. In this case the Lord Ordinary was applied to to fix a day for the trial after the adjustment of issues, which took place on 22nd May, but he could not give a day till November. Accordingly the defenders took advantage of their right to move the Lord Ordinary to remit the case to the sittings for trial. It was in the power of the pursuer to object to this, as he did, and give any good reason why he could not be ready for trial then, but the Lord Ordinary did not consider the reasons then tabled were sufficient, and he sent the case to the sittings. It is still perfectly competent, notwithstanding that, that either party should come to us and ask that the trial should be postponed, but I wish to lay it down for the guidance of the profession that such a motion will not be granted unless very strong grounds can be shown for interfering with the decision of the Lord Ordinary, or unless there has been a change of circumstances since the date of the Lord Ordinary's interlocutor, e.g., the death or illness of one of the parties.

That being the general rule, I come to the application for postponement in this case. I cannot see that we have before us any good grounds for interfering with what the Lord Ordinary has done. There has been no undue haste on the part of the pursuer. The summons was signeted on 27th January 1912, but the pursuer, who has in his hands the progress of a case in its early stages, did not have the production held satisfied till 19th March, and the adjustment of the record was continued until the beginning of the summer session. Now all along the pursuer must have known that the trial was coming on, but

Page: 983↓

the only thing he can say in moving for postponement is that one witness who is very material is in Switzerland and that another material witness is a roving gentleman whose present address is unknown to the pursuer. I therefore think this motion should be refused.

Lord Kinnear—I concur.

Lord Mackenzie—I also concur.

Lord Johnston was not present.

The Court refused the motion.

 Counsel:

Counsel for the Pursuer— Macquisten. Agents— Purves & Simpson, S.S.C.

Counsel for the Defenders— Moncrieff, K.C.— J. M. Hunter. Agents— Simpson & Marwick, W.S.

 1912

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URL: http://www.bailii.org/scot/cases/ScotCS/1912/49SLR0982.html