Scottish Court of Session Decisions

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Cite as: [1900] SLR 37_380, [1900] ScotLR 37_380

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Friday, January 26. 1900.

37 SLR 380

Russell

v.

Macknight's Trustee.

( Ante, November 7, 1896, 34 S.L.R. 73; 24 R. 118.)

Subject_1Process
Subject_2Jury Trial
Subject_3Order for New Trial
Subject_4Failure to Proceed — A.S., February 16, 1841, secs. 41 and 46 — Court of Session Act 1850 (13 and 14 Vict. cap. 36), sec. 40.
Facts:

Section 41 of the Act of Sederunt 16th February 1841 provides—“All regulations as to notices of trial, as to abandonment of the suit, as to not proceeding to trial, and as to not appearing and proceeding with evidence at the trial, and all other matters and things herein provided for regulating the conduct of parties as to trials, shall be the same in
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the case of a new trial as in the case of an original trial.”

Section 46 provides— … “If the pursuer or party appointed to stand as pursuer shall not proceed to trial within twelve months after issues have been finally engrossed and signed, the Court shall proceed therein as in cases in which parties are held as confessed, unless sufficient cause be shown for the delay to the satisfaction of the Court.”

Section 40 of the Court of Session Act 1850 provides that “where an issue or issues is or are approved as aforesaid, it shall be competent to the Lord Ordinary in the cause, on the motion of either of the parties, to appoint a time and place for the trial of such issue or issues.”

The defender in a jury trial, after a verdict had been pronounced against him, successfully moved for a new trial, and the pursuer for a period of more than twelve months thereafter took no further step in the action. The defender having applied for absolvitor, held (1) that the provision in section 46 of the Act of Sederunt was not impliedly repealed by the alternative procedure provided by the 40th section of the Court of Session Act 1850, and (2) that it applied to the case of a new trial granted after a verdict had been set aside.

Macfarlane v. Beattie & Son, July 1, 1892, 19 R. 954, commented on.

Headnote:

This case is reported ante, ut supra.

On 6th February 1896 Mrs Jessie Morison or Russell raised an action against Mr A. E. Macknight, Edinburgh, for payment of £1000 as damages for the death of her husband, who had been tenant of a house in South Queensferry belonging to the defender, and had died in consequence of an accident caused, it was alleged, by the absence of a hand-rail on the stair of the house. The case was tried before a jury, who returned a verdict for the pursuer, and assessed the damages at £150.

The defender having moved for a new trial, the First Division on 7th November 1896 granted a new trial.

The defender now moved the Court to assoilzie him from the conclusions of the summons in respect that the pursuer had taken no steps in the action since the granting of the new trial, a period much in excess of twelve months.

Argued for defender—(1) Section 40 of the Act of 1850 only provided an alternative remedy, and was in no way intended to repeal the provisions of the Act of Sederunt, which were constantly put into operation at the present day— Wilson v. Haggart, July 15, 1863, 1 Macph. 1115. The defender here had no wish to go to trial, and therefore employed the older remedy. (2) Section 41 of the Act of Sederunt in express terms showed that the remedy provided by the 46th section would be applicable to the case of a new trial. The only explanation of the case of Macfarlane v. Beattie & Sons, July 1, 1892, 19 R. 954, was that section 41 was not cited to the Court.

Argued for pursuer—(1) The machinery provided by the Act of 1850 had by implication repealed that in the Act of Sederunt. All jury-trial procedure was a creation of statute, and the later statutes must be looked to for appropriate procedure— Baird v. Cornelius, July 16, 1881, 8 R. 982. (2) The case was directly ruled by Macfarlane v. Beattie & Sons.

Judgment:

Lord President—The defenders in this case, founding on the Act of Sederunt of 16th February 1841, move the Court for absolvitor upon the ground that the pursuer has not proceeded to trial within twelve months after a new trial was granted, and that no sufficient cause has been shown for the delay. To this the pursuer replies that the Act of Sederunt of 16th February 1841 is in effect repealed, or at all events superseded by the Court of Session Act 1850, and, separatim, that section 46 of the Act of Sederunt does not apply to the present case, inasmuch as the only period therein referred to is twelve months after issues have been finally adjusted, or in other words, that the section is applicable only to a first trial, and not to a new trial after a verdict has been set aside. In answer to this argument the defenders refer to section 41 of the Act of Sederunt, which provides “that all the regulations as to notice of trial, as to abandonment of the suit, as to not proceeding to trial, and as to not appearing and proceeding with evidence at the trial, and all other matters and things herein provided for regulating the conduct of parties as to trials, shall be the same in a new trial as in the case of an original trial,” and it appears to me that this section directly applies to the case, and warrants the Court in granting absolvitor, the pursuer having failed to show any sufficient cause for the delay in proceeding to the new trial. Reference was made by the pursuer to the case of Macfarlane v. Wm. Beattie & Sons, 19 R. 953; but it is to be observed that section 41 of the Act of Sederunt was not brought under the notice of the Court in that case, the defenders having, as the report bears, founded on section 46 of the Act of Sederunt, “and maintained that the spirit of that Act applied although the words did not in terms.” It appears to me, however, that section 41 makes the provisions of section 46 directly applicable to the present case.

Lord M'Laren—I think that it is clear that the Act of Sederunt of 1841 is still in force. I have myself seen it applied hundreds of times in the course of my experience as a lawyer and a judge. It is equally clear that the 41st section is directly applicable to the case presented to us. The only question is whether section 41, and the other sections which are governed by it, have been repealed by implication through the effect of the Act of 1850. In support of that view all that has been said is that in the case of Macfarlane v. Beattie, where counsel founded on a wrong section of the Act of Sederunt, the Court, being in doubt

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whether the section applied, without pronouncing an interlocutor, suggested as a way out of the difficulty that the defenders might apply to have the case set down for trial. That may have been an appropriate remedy in that case, but there are many cases in which it very clearly would be inappropriate. There may be cases where the verdict is set aside on the ground of misdirection or excessive damages, and where it is necessary that a second trial should proceed in order to the ascertainment of the correct amount of damages. But where the verdict is set aside as being contrary to evidence, and no further evidence is available, it would be useless, and it is not consistent with professional practice, that the pursuer should avail himself of his right to a new trial, and it would certainly be very inexpedient for the defender to do so. I am of opinion that the alternative remedy under the Act of 1850 does not interfere in any way with the right conferred on the defender by section 41, but that the pursuer may move for absolvitor if the pursuer has not moved for a trial within the statutory period.

Lord Adam and Lord Kinnear concurred.

The Court assoilzied the defender from the conclusions of the action.

Counsel:

Counsel for Pursuer— A. M. Anderson. Agent— D. Howard Smith, Solicitor.

Counsel for Defenders— Dewar— Grainger Stewart. Agents— Hugh Martin & M'Kay, S.S.C.
1900