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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mooney v. William Dixon, Ltd [1897] ScotLR 34_809 (13 July 1897)
URL: http://www.bailii.org/scot/cases/ScotCS/1897/34SLR0809.html
Cite as: [1897] SLR 34_809, [1897] ScotLR 34_809
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SCOTTISH_SLR_Court_of_Session
Page: 809↓
Court of Session Inner House Second Division.
[Sheriff of Lanarkshire
v.
Facts:
The pursuer in an action of damages for personal injury, whose agent had ceased to act for him, failed to pay the fee fund dues necessary, in terms of the Act of Sederunt of 18th December 1896, to enable a precept for citation of a jury to be transmitted to the Sheriff, and in consequence no jury was cited to try the cause on the day appointed for the trial. The Court, after intimation had been made to the pursuer, no reply having been received from him, assoilzied the defenders with expenses.
Page: 810↓
This was an action of damages for personal injury brought in the Sheriff Court at Glasgow by John Mooney, labourer, against his employers, William Dixon, Limited, iron and coal masters in Glasgow.
The pursuer appealed to the Court of Session for jury trial. An issue was approved for the trial of the cause on 19th May 1897, and the case was appointed to be tried on 2nd July.
Thereafter the pursuer's law-agents ceased to act for him, and the pursuer failed to pay the dues exigible in terms of the Act of Sederunt of 18th December 1896, I. 23 (5)—which enacts that law-courts' stamps for £2 must be affixed to the precept for citation of the jury before it is transmitted to the Sheriff. In consequence of this failure on his part no jury was cited and the trial did not take place on 2nd July as appointed.
On that day counsel for the defenders moved the Court for decree of absolvitor with expenses in respect of the circumstances above detailed, and referred to the case of Gilhooly v. M'Hardy, June 18, 1897, 34 S.L.R. 737.
The Court directed the defenders to make intimation to the pursuer that in the event of his not taking steps to go on with the jury trial they would move for absolvitor upon a certain day in the following week.
The defenders' agents on the same day sent a registered letter to the pursuer giving him notice that upon Saturday 10th they would move the Court to assoilzie the defenders with expenses in respect of the pursuer's failure to provide for citation of a jury and of his failure to appear at the trial.
No answer was received to this letter, a copy of which was lodged.
On July 13th counsel for the defenders appeared and stated that intimation had been duly made and no answer received. He moved for absolvitor with expenses.
The Court pronounced the following interlocutor:—
“The Lords, in respect of the pursuer's failure to cite a jury, and of the intimation made to him, Dismiss the appeal, and assoilzie the defenders from the conclusions of the action, and decern: Find them entitled to expenses in this and in the Inferior Court,” &c.
Counsel for the Defenders— Clyde. Agent— W. & J. Burness, W. S.