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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Wyllie v. Wyllie [1910] ScotLR 1 (15 October 1910) URL: http://www.bailii.org/scot/cases/ScotCS/1910/48SLR0001.html Cite as: [1910] ScotLR 1, [1910] SLR 1 |
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(Single Bills.)
[
The Court has a discretion to allow to be adjusted issues not timeously lodged.
The Act of Sederunt, July 15, 1865, section 12, enacts — “All appointments for the lodging or adjusting of issues shall be held to be peremptory; and if the issue or issues be not lodged within the time appointed, it shall be competent to the opposite party to enrol the cause, and to take decree by default. …”
The Act of Sederunt, March 10, 1870, section 1 (5), enacts—“In every case in which proof is to be taken before a jury, issues shall be adjusted either at the time of proof being appointed in the cause, or on a day to be fixed not later than eight days thereafter; and the parties shall lodge the issues respectively proposed by them two days before the day so fixed.”
Wallace Wyllie, 30 Union Buildings, Smith Street, Ayr, raised an action against Charles Wyllie, manufacturing chemist, Mews Lane, Ayr, for damages on the ground that the defender had falsely, maliciously, and without probable cause lodged a complaint with the criminal authorities charging the pursuer with theft or embezzlement, and had caused him to be arrested and detained in custody.
On 19th May 1910 the Lord Ordinary (
Guthrie ) closed the record and assigned the 26th May for the adjustment of issues.The 24th of May was Victoria Day, and the pursuer's agent, in the belief that it was a holiday, did not lodge issues on that date, but did so on the 25th.
On 26th May the Lord Ordinary pronounced this interlocutor—“Adjourns the adjustment of issues till the day of
On 14th July the Lord Ordinary pronounced this interlocutor — “The Lord Ordinary, in respect the pursuer has failed timeously to lodge the issues proposed for the trial of the cause, in terms of section 12 of the Act of Sederunt of 15th July 1865, dismisses the action and decerns,” &c.
The pursuer reclaimed, and argued—(1) The Lord Ordinary had proceeded on the view that the appointment to lodge issues was peremptory under the Act of Sederunt 15th July 1865, and that he had no discretion in the matter. The provisions of that section had, they maintained, been superseded by those of the Act of Sederunt of 10th March 1870, section 1 (5), and as no sanction was there expressed, the Lord Ordinary had a discretion. (2) In any case the defender had not enrolled the cause to take decree, but had allowed the cause to come out automatically, and accordingly could not take advantage of section 12.
Argued for the defender and respondent—(1) The provisions of the two Acts of Sederunt could stand together. The lodging of issues was peremptory. (2) Assuming the Lord Ordinary had a discretion, all the facts were before him, and it did not appear that he had not exercised that discretion.
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The interlocutor reclaimed against must therefore be recalled and the case remitted to the Lord Ordinary to allow issues to be adjusted—the expenses of the reclaiming note to be expenses of the cause.
The Court remitted the cause to the Lord Ordinary in order that he should allow issues to be adjusted.
Counsel for the Pursuer and Reclaimer — D. P. Fleming. Agents— Clark & Macdonald, S.S.C.
Counsel for the Defender and Respondent— A. A. Fraser. Agent— James G. Bryson, Solicitor.
