Scottish Court of Session Decisions

On December 3rd 1902 the agent for the pursuer gave notice of trial for the Christmas sittings.

On January 21st 1903 an interlocutor was pronounced by the First Division appointing the trial of the cause to take place before the Lord President and a jury on Monday, February 9th 1903.

On January 30th 1903 the pursuer or his agent should have paid to the Clerk of Court for transmission to the Sheriff-Clerk of the Lothians the fee fund dues for summoning a jury for the day appointed for the trial of the cause.

The dues were not paid, and it was impossible for the trial of the cause to take place on the date fixed as no jury had been or could then be summoned for the date fixed for the trial.

The defenders in these circumstances presented a note in which they craved the Court “to discharge the diet fixed for the jury trial on 9th February 1903, and in respect of the pursuer's failure to take the necessary steps to have the cause tried on that day to assoilzie the defenders from the conclusions of the summons, and to find them entitled to expenses,” &c.

In the letter by the agent of the defenders forwarding a copy of the note to the pursuer and also to his agent, the defenders gave notice that they were to move for the dismissal of the action.

Two notices of the date of trial were sent by the officials of the Court to the pursuer.

No appearance was made for the pursuer.

Argued for the defenders—The case came under the Act of Sederunt 16th February 1841, section 46, and was in the same position as a case which was abandoned by the party, or in which the party did not proceed to trial within twelve months after the issue was allowed. Accordingly the defenders were entitled to absolvitor.