Scottish Court of Session Decisions

The Criminal Procedure (Scotland) Act 1887 (50 and 51 Vict. cap. 35), sec. 48, enacts—“It shall not be necessary for the High Court of Justiciary to proceed to any town for the purpose of holding any court in use to be held in such town when there are no cases indicted for the sitting of the court in such town, or when so many of the persons indicted thereto have pleaded guilty before the sheriff at the first diet as to make the holding of a special court inexpedient, and in that event such cases as remain for trial may be ordered to be brought up at another court in manner here in after provided, and any appeal which may have been taken to such court shall”…

The Act 55 Geo. III. cap. 42, which extended trial by jury to civil causes, by section 15 provided for the trial of such causes in time of vacation at Edinburgh

Page: 465↓

or at circuit towns, and, by section 20, provided for the summoning of jurors for the hearing of such causes.

The Act of Sederunt of 16th February 1841, sec. 12, provides—“That to entitle a party to go to trial,… if the trial is to be on the circuit, he must give notice on or before the second last day of the session immediately preceding the circuit at which the cause is to be tried.” Section 13—“That when a party gives notice that the cause is to be tried in Edinburgh or on the circuit, the opposite party, if he wishes to have the place of trial changed, must within four days from the receipt of such notice make a motion in the Division to which the cause belongs for that purpose.”

The Court of Session Act 1850 (13 and 14 Vict. cap. 36), sec. 40, makes provision for the Lord Ordinary in the cause appointing a time and place for the trial of an issue which has been approved, and enacts—“and such trial shall proceed at the time and place so appointed, unless at the time of such appointment one or other of the parties shall intimate to the Lord Ordinary that he objects thereto, in which case the Lord Ordinary shall report the matter to the Court, by whom it shall be fixed when and where the trial shall proceed.”

In an action at the instance of James Laing, Bellevue, Keith, in which he sought to recover £5000 damages for defamation from Thomas Abercromby Petrie Hay, wholesale merchant, Keith, issues were adjusted by the Lord Ordinary ( Kincairney) on 7th December 1904, and a reclaiming note taken by the defender was abandoned on 17th December 1905. On the 28th January the pursuer intimated to the defender that on the 31st January he would move the Lord Ordinary to fix a day for trial, but on the 30th January the defender's agent, in respect that the pursuer had not given notice of trial within ten days from the time the issues were lodged, as provided by the Act of Sederunt 24th February 1824, served on the pursuer's agent a notice that the cause would be tried at the ensuing Circuit Court at Aberdeen. On the 1st February the Lord Ordinary, in respect that it was inconvenient for him to fix a diet for the trial (he was on the point of going into the Division), refused the motion of the pursuer, who thereupon intimated to the defender that the cause would be tried at the sitting of the Court for jury trials in the ensuing vacation. The pursuer presented a note to the Division on 2nd February, in which, after narrating the facts, he moved the Court to fix the trial of the cause at the sittings for jury trials at Edinburgh in the ensuing Spring vacation, or at such other time as the Court should think proper.

Counsel for the pursuer, on Friday, February 3, explained at the bar that the Lord Ordinary had not reported the cause in terms of the Court of Session Act 1850, section 40, because that Act only provided for the case where the Lord Ordinary had fixed a diet, and that it had been necessary under the provisions of the Act of Sederunt of 16th February 1841 to present the note at once. The reason why a change was desired in the diet was that it was probable there would be no Spring Circuit at Aberdeen, there being no sufficient criminal business to necessitate the Court of Justiciary going there. There was no provision in the Criminal Procedure (Scotland) Act 1887 for trying a civil cause where there was no criminal business.

Counsel for the defender objected to any change, on the ground that the cause was particularly suitable for trial on circuit, looking to its probable length, the residence of the parties and witnesses, and the delicate state of health of the defender. The defender was within his right in giving notice for trial at the Circuit Court— Faulkes v. Park, June 17, 1854, 16 D. 963—and it was for the pursuer to show a good reason for a change— Mackin v. North British Railway Company, June 25, 1885, 22 S.L.R. 775; Macpherson v. Caledonian Railway Company, July 6, 1881, 8 R. 901, 18 S.L.R. 658; Willox v. Bell, July 20, 1847, 19 Jur. 692. It was premature to say that there was a likelihood of there being no Circuit Court for want of criminal business.