Scottish Court of Session Decisions

Subject_1Process
Subject_2Reclaiming
Subject_3Decree Assoilzieing Defender where Pursuer is Absent and Defender has been Appointed to Lead in a Proof
Subject_4ill-health assigned as Ground of Absence.
Facts:

This was an action of count and reckoning by a lady against her law agents, and related to certain sums of money which she alleged had come into their hands in order to carry on a litigation on her behalf. After a variety of procedure the Lord Ordinary ( Rutherfurd Clark) pronounced this interlocutor:—“The Lord Ordinary having beard parties, Allows them a proof of their respective averments, the defenders to lead; grants diligence at the instance of both parties for citing witnesses and havers; and appoints the proof to proceed before the Lord Ordinary upon Thursday, the 16th day of June next, at 10 o'clock forenoon.” Thereafter, on the 16th June, the following interlocutor was pronounced:—“The Lord Ordinary, in respect of no appearance made for the pursuer, Finds it unnecessary to proceed with the proof allowed by interlocutor of 13th May last: Therefore discharges the order for proof, assoilzies the defenders from the conclusions of the summons, and decerns.” The pursuer reclaimed. Nevay for her produced a medical certificate, and stated that being an old woman, over seventy years of age, bedridden, and in poor circumstances, she had been unable to attend to her interests in the litigation. In any case, the defenders were appointed to lead the proof, and had failed to do so. [The Lord President observed that the defenders, as pursuers of the issue, might either lead proof or not, as they preferred]. The defenders replied—The medical certificates merely bore that the pursuer was an old woman, and, besides, her personal attendance at the proof was not necessary. The Court refused the reclaiming note.