Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1901/38SLR0445.html
Cite as: [1901] ScotLR 38_445, [1901] SLR 38_445

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SCOTTISH_SLR_Court_of_Session

Page: 445↓

Court of Session Inner House First Division.

Thursday, March 7. 1901.

38 SLR 445

Robertson

v.

Hall.

Subject_1Process
Subject_2Proof
Subject_3Jury Trial
Subject_4Time of Trial — Motion for Postponement.
Facts:

An action of damages was raised on 22nd November 1900, complaining of slanders alleged to have been uttered in March 1898 and November and December 1899. Issues and a counter issue were adjusted on 19th February 1901. The counter issue referred to alleged acts of dishonest appropriation of money said to have been committed in 1894. On 4th March the pursuer gave notice for the sittings commencing on 21st March 1901. The defender moved for a postponement of the trial in respect of the shortness of the time between the adjustment of the issues and the probable date of trial, the difficulty of procuring certain material evidence in support of the counter issue, which referred to periods so far back as 1894, and the delay between the dates of the alleged slanders and the raising of the action.

The Court discharged the notice of trial.

Headnote:

On 22nd November 1900 Robert Chisholm Robertson, miners' agent, Glasgow, raised an action of damages for slander against John Hall, miner, Slamannan.

The pursuer averred that upon four specified occasions in March 1898 and in November and December 1899 the defender had slandered him, (1) and (2) by using words of and concerning him in connection with the distribution of certain funds during a strike in 1894 which falsely and calumniously represented that the pursuer had dishonestly appropriated a portion of said funds: and (3) and (4) by saying that the pursuer had embezzled money belonging to the miners.

The defender denied having used the expressions 3rd and 4th complained of, and pleaded, inter alia—“(3) Any statements made by the defender of and concerning the pursuer having been true, the defender ought to be assoilzied.”

On 19th February 1901 the Lord Ordinary ( Stormonth Darling) approved of four issues for the pursuer which referred respectively to the four alleged slanderous statements above mentioned. He also approved of the following counter issue for the defender:—“Whether during the year 1894 the pursuer, as agent of the Forth and Clyde Miners' Association, received from the Scottish Miners' Association sums of strike money amounting in all to more than £300, of which he dishonestly appropriated the sum of £160 in or about July 1894. and the sum of £140 in or about October 1894.”

On 4th March 1901 the pursuer gave notice for the sittings commencing on 21st March.

The defender presented a note to the First Division, craving the Court to postpone the trial of the case in view of “(1) the lack of time between the adjustment of issues and the probable date of the trial, and the difficulty in procuring certain
Page: 446↓
material evidence to meet the defender's said counter issue, the charges referring to periods so far back as the miners' strike of 1894, out of which the present action has arisen; (2) the delicate nature of said counter issue; and (3) the delay which has taken place between the date of the slanders said to have been uttered by the defender and the raising of the present action.”

The pursuer objected to the postponement of the trial.

Judgment:

Lord President—The issue in this case was only adjusted on 19th February, and the sittings for jury trials begin on the 21st March. On looking at the issues and record it is pretty plain that documentary evidence will be required, and documents must be lodged eight days before the trial. The defender could not get a diligence before the issues were adjusted. The time available for preparation would accordingly be very short indeed, and as counsel tells us on his responsibility that he cannot with justice to the case go to trial at the sittings, it seems to me that we should grant this motion for postponement. If we declined to do so we might exclude the possibility of the defender proving his counter issue.

Lord M'Laren—I am of the same opinion, and would only further observe that the right of a pursuer to lead in a jury case is not nearly so strong when there are counter issues as when there are issues only at the instance of the pursuer.

Lord Adam and Lord Kinnear concurred.

The Court discharged the notice of trial.

Counsel:

Counsel for the Pursuer— Horne. Agent— James B. Bryson, Solicitor.

Counsel for the Defender— Hunter. Agent— D. C. Oliver, Solicitor.
1901