Scottish Court of Session Decisions

Issues were adjusted in this case by the Inner House on 6th February 1864, when the case was remitted to the Lord Ordinary. The defender moved the Lord Ordinary under the Act of Sederunt of 1841 for absolvitor in respect of the pursuer's failure to proceed to trial within twelve months after the adjustment of issues. The Lord Ordinary reported the motion in consequence of a difficulty having occurred as to whether the motion should be made in the Outer House or in the Division. The Act of Sederunt of 1841 provides that after issues are engrossed all motions in the cause shall be made in the Division to which such cause belongs. By the Court of Session Act adjustment of issues is made equivalent to engrossment. The Second Division found, in the case of Ferguson v. Ferguson, 13th July 1861 ( 23 D. 1290), that such a motion as the present should be made in the Inner House, on the ground that the intention of the Court of Session Act was to send cases to the Lord Ordinary for the purposes of trial only, and that to all other effects the former practice remained in force. On the contrary, the First Division, in the subsequent case of Hornel v. Gordon, 10th February 1864 ( 24 D. 551), had decided that a motion for a diligence after the adjustment of issues should be made before the Lord Ordinary.

The Court adhered to the opinions they had formed in Hornel's case, but stated they would consult with the other Division on the subject. In the meantime they would deal with this case on the report of the Lord Ordinary.

It was then urged for the pursuer that although twelve months had elapsed since adjustment of issues, there was sufficient cause for the delay to justify the motion being refused. The case involved a complicated accounting, extending from 1855 to 1861. Immediately after issues were adjusted the pursuer had applied for and obtained a diligence from the Lord Ordinary, which, after various delays and adjournments, many of which were caused by the defender, was ultimately reported on 26th January 1865. Shortly thereafter, and on 18th March, the pursuer's agents wrote to the defender's agents asking them how long they would require for an examination of the documentary evidence which had been recovered. To this letter no answer was returned. The defender had therefore changed his agents. In fact the pursuer was ready to go to trial, but was delaying for the convenience of the defender and his new agents, and in the hope, too, that the case might be arranged without jury trial, for which it was not very well suited.

The Court, after asking the opinion of the Lord Ordinary, who thought that possibly the pursuer might have been misled by the abrupt close of the correspondence, the letter of 18th March not having been answered, refused the motion.