Scottish Court of Session Decisions

Subject_1Process
Subject_2Jury Trial
Subject_3Time and Place of Trial
Subject_413 and 14 Vict. c. 36 (Court of Session Act 1850), sec. 40. Headnote:

In an action against the Caledonian Railway Co. for damages sustained in an accident at Pennilee, near Glasgow, on their line, issues were adjusted before the Lord Ordinary on 31st January. Notice of trial was on 1st February given by the pursuer for “next Glasgow Circuit,” which was in point of fact the Circuit subsequently held there on 21st February and following days. On 4th February the pursuer countermanded this notice. On 8th February the defenders enrolled the case to have a day fixed for trial before the Lord Ordinary. His Lordship was at that time unable to give parties a day, and the motion dropped. On 10th February the pursuer gave notice of trial for Glasgow Spring Circuit. The defenders then renewed their application to the Lord Ordinary to fix the trial before his Lordship, who found himself able to give the 10th of March for that purpose. The pursuer would not agree to this proposal, and the Lord Ordinary accordingly reported the case to the First Division.

The pursuer contended—There could be no allegation of urgency in this case, the accident at Pennilee occurred in September 1880, and the pursuer's injury was concussion of the spine, producing a diabetic affection, and the action, in which the summons was not signeted till 15th December 1881, was delayed until his condition should have time to manifest itself. Pursuer's notice of February 1st was meant for Glasgow Spring Circuit, it being at least a doubtful point whether the case could competently be tried at the intermediate Circuit, and hence his countermand on 4th February. The proposed day (10th March) was too soon, as a deposition would have to be taken at San Remo by commission on interrogatories, which were not yet adjusted, and as to place pursuer preferred Glasgow. He had never lost his original lead— Macpherson v. The Caledonian Railway Company, 6th July 1881, 8 R. 901.

The defenders argued—The trial should be before the Lord Ordinary on 10th March. There was urgency here, though the pursuer had already caused great delay. The company were desirous of having the claims arising from this action settled as soon as possible, as a special suspense account had to be kept in their books till such settlement was effected. The pursuer had lost his lead by countermanding his notice of 1st February. The policy of the statute was in favour of speedy despatch of business— Moffat v. Lamont, Jan. 7, 1859, 21 D. 212; Campbell v. Caledonian Railway Company, Dec. 15, 1881, 19 Scot. Law Rep. 187.

The Lords appointed the trial to proceed before the Lord Ordinary on 10th March, the Lord President remarking—“The point has been stated by my brother Lord Mure in a single sentence; it is a question between three weeks and three months, and I am for the three weeks.”