Scottish Court of Session Decisions

This case raised an important point in procedure. The summons in the action was signeted 11th May 1872, and concluded for “the sum of £200 in name of solatium, reparation, and damages,” for the loss, injury, and damage sustained by the pursuer. The circumstances shortly were as follows—

The pursuer is a wine and spirit merchant, and the defender a shoemaker, in Rose Street, Edinburgh, and the latter has been employed by the pursuer. In the course of the employment a disputed account of £3, 17s. gave rise to a quarrel, and the pursuer averred that the defender, actuated by ill-will, hatred, and malice, forthwith began to traduce and asperse his reputation and character. These averments the pursuer fully condescended upon, and the defender refused to retract these alleged false, slanderous, and malicious statements.

On 20th June 1872 issues were adjusted for the trial of the cause, but no steps were taken by the pursuer within a year and a day after that date with a view to trial. On 25th June 1873 the defender enrolled the case before the Lord Ordinary to have the action dismissed, in terms of the Act of Sederunt 16th Feb. 1841, sec. 46, and when the case was called before the Lord Ordinary, on June 27, no appearance was made for the pursuer; but his Lordship expressed doubts as to the competency of his granting the motion, and stated that he would report the case to the Court on the Tuesday following. The defender, accordingly, on Saturday the 28th, again enrolled the case for Tuesday. On the afternoon of Monday, the 30th, the pursuer's agent intimated that the Lord Ordinary would be moved to fix a day for the trial of the cause, and in the evening of the same day he gave notice that the case would be tried at the ensuing sittings.

On the case being called before the Lord Ordinary ( Shand), the pursuer objected to the defender's

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motion being entertained to any effect whatever, on the ground that by the notice of trial the case had been transferred to the Inner House; and thereupon his Lordship suggested that the defender should enrol the case in the Inner House in the ordinary way. The defender's motion for dismissal of the cause was accordingly heard before the First Division, when the pursuer gave as his reasons for not having gone to trial that the defender had left Edinburgh, where he had lived previously, and that he was not able to ascertain his whereabouts; and, further, that the pursuer's former agent had ceased to act for him, he understanding, and being entitled to understand, that an agent was acting for him, while in reality there was none.

The defender replied that he only left Edinburgh and went to Glasgow in pursuance of his trade as a journeyman shoemaker, and that with the knowledge of the pursuer; and farther, in any view no application had been made by the pursuer to ascertain the defender's place of abode.