Scottish Court of Session Decisions

Lord President—It certainly is very desirable to have some means of preventing an advocator from lying by as this advocator had been doing, and tiding over a session in this way, without taking a single step in his advocation, and I don't see any difficulty from the statute. The Lord Ordinary is directed, if a motion be made to that effect before him, to appoint the record and proof to be printed, and boxed to the Judges of the Inner House, and to report the cause to the Inner House; but it is not on that being done that he is to report, nor on anything being done, in so far as the statute is concerned. And, unless there is some difficulty in the form of the interlocutor here, we are in a position to send the case to the roll. At first sight there does seem some difficulty. The Lord Ordinary allowed parties to lodge additional pleas, in eight days each, and, on that being done, reports to the Inner House. Certainly, taking that literally, the report does not properly become a report until that is done. But looking to the fact that the thing is only allowed to be done, and may be done or not as the parties think fit, this is too strict a reading of the interlocutor. I think the Lord Ordinary intended to allow each party eight days to lodge additional pleas, and after that to report whether they lodged additional pleas or not. And therefore such condition as there is prefixed to this interlocutor is sufficiently purified by the lapse of time allowed for lodging additional pleas, as well as by the actual lodging of additional pleas. And therefore this report is now an unconditional report, and the case falls under the principle of Dow v. Jamieson, which we decided a very short time ago. And therefore I think we ought to send this note of advocation to the roll; and in order to make the remedy practically available to the respondent, it is necessary to put it to the roll immediately; but we may give the advocator all the time we can, consistently with that, to put himself right by printing and boxing the papers. What I propose is, to put it to the roll for Saturday; and if the advocator has not by that time printed and boxed, we shall give judgment against him by default.

The other Judges concurred.

On the following Saturday accordingly the case was put out in the summar roll. The advocator did not appear. The Court, in respect of his non-appearance, dismissed the advocation, with expenses.