Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1872/09SLR0402.html
Cite as: [1872] SLR 9_402, [1872] ScotLR 9_402

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SCOTTISH_SLR_Court_of_Session

Page: 402↓

Court of Session Inner House First Division.

Tuesday, March 19. 1872.

9 SLR 402

Logan

v.

Weir.

Subject_1Jury Trial
Subject_2Lead
Subject_3Unpaid Expenses.
Facts:

Where the pursuer, having failed in one part of his case, had been subjected to the payment of a sum of expenses, on the third last sederunt day of the Winter Session, the defender moved to have the notice of trial given for the Spring Circuit Court discharged, on the ground that the pursuer was unable to pay these expenses. The expenses not having been paid nor caution found, the Court, in respect of the Session being at an end, discharged the notice of trial.

Headnote:

The pursuer having raised an action of slander, said to have been committed judicially, against the defender, failed in certain points, and decree for £33 of expenses was, on 16th March, pronounced against him. Notice of trial at the ensuing Stirling Circuit, on the remaining issue, was given by the pursuer; and the defender now moved to have this motion discharged.

Judgment:

Balfour, for him, stated that the expenses had not been paid, and that the pursuer's agent had stated to the defender's agent that the pursuer was unable to pay them. In these circumstances it was unfair to compel the defender to litigate in a doubtful case, where it would be impossible for him to get his expenses if successful. If the trial were deferred till May the pursuer would be charged to pay the expenses decerned for, and would either have paid them or become bankrupt. Authority referred to— Wright v. Ewing, 12 Shaw 535.

Mair and Rhind, for the pursuer, objected to the lead being thus taken from the pursuer.

The Court continued the case till the following day, to give the pursuer time to pay the expenses, or find caution for them, intimating that if one or other was not done, the notice of trial would be discharged. The Court intimated that if it had not been the second last day of Session, they would have

Page: 403↓

waited till the expenses had been paid by the pursuer, or he had become bankrupt. But in these special circumstances the Court would take the lead out of the pursuer's hands, as by May one or other of these events would have occurred; and if the expenses were not paid it would be the defender's fault.

The expenses not having been paid or caution found, the Court, on the following day, discharged the notice of trial.

Solicitors: Agent for Pursuer—

Agents for Defender— Webster & Will, S.S.C.

1872

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