Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1867/03SLR0282.html
Cite as: [1867] SLR 3_282, [1867] ScotLR 3_282

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SCOTTISH_SLR_Court_of_Session

Page: 282↓

Court of Session Inner House First Division.

President Lord Young

3 SLR 282

Moore

v.

Forth Iron Co.

Subject_1Process
Subject_2Jury Trial
Subject_3A. S. 1841.

Facts:

Circumstances in which a motion for absolvitor, in respect the pursuer had not gone to trial within twelve months after an issue was adjusted was refused.

Headnote:

This was an action of damages by a manager for wrongous dismissal. An issue for trial was adjusted on 3d February 1866. Notice of trial had been given for last Christmas sittings, but on 3d December 1866 it was ascertained that the pursuer could not go to trial at Christmas, and he accordingly countermanded his notice of trial, and gave notice of trial for the ensuing sittings. On 29th January 1866 the defenders made a tender of £1020, 5s., and expenses up to that date, and on 28th February last the pursuer, finding that he could not be present as a witness at the trial in consequence of professional engagements in Spain, intimated to the defenders agents that he was willing to accept their tender and to pay them the expenses which they had incurred since its date. On the following day—namely, 1st March—the defenders intimated that they intended to move the Court for absolvitor under sect. 46 of the Act of Sederunt of 1841, in respect of his failure to proceed to trial within twelve months. This motion was discussed to-day.

Watson for the pursuer.

Young and Clark for the defenders.

The cases of Blair v. Buchanan, 22 D., 1271, and Angus v. Grier, 16 D., 303, were cited.

The motion was refused, with expenses.

Judgment:

The Lord President said—I think this motion cannot be entertained. There is no doubt that the rule of the Act of Sederunt is an exceedingly wholesome and expedient one, but it is a rule which might be strained so as to work great injustice, if a certain amount of discretion was not, as there is, left to the Court. I think there has been in this case sufficient cause shown why the rule should not be applied. The kind of investigation necessary with a view to trial was out of the ordinary course, and involved an inquiry into the going business of the defenders. It was not to be expected that they were to give up their business books, and accordingly a very reasonable arrangement was made whereby accountants for both parties, one from Edinburgh and another from Glasgow, were to examine the books at the defenders' works in Fifeshire. This arrangement, however, was calculated to cause delay, and we find that it did so. Then on 3d December last, the pursuer's agent, seeing that the investigation was not sufficiently advanced to justify his going to trial at Christmas, wrote to the defenders' agent that he had countermanded the notice for trial then, and given a new notice for March. It has not been said to-day that the investigation was sufficiently advanced in December to justify the pursuer in going to trial at Christmas; and how do the defenders' agents receive the letter of the pursuer's agent? They were entitled, notwithstanding the countermand, to come to the Court and ask us to fix the trial for Christmas, but instead of that, they go on jointly with the pursuer's agent until recently in preparing for the trial in March. In these circumstances, I think the defenders' motion should be refused.

The other Judges concurred, Lord Deas observing that, to his mind, it was not immaterial that the acceptance of the tender had preceded the intimation of this motion. The twelve months expired on 3d February, but this motion was not made till 1st March, the tender having been accepted the day before.

Counsel:

Agent for Pursuer— A. Kelly Morison, S.S.C.

Agents for Defenders— Lindsay & Paterson, W.S.
1867

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