Scottish Court of Session Decisions

The petitioner, Stamatius Paul Zizinias, merchant in London, and his mandatories, presented this petition, stating that on the 27th June 1867 they had raised and signeted a summons against Francesco Fioretti, presently in Greenock, master of the Italian vessel the “Daniele Manin,” and Leon Serena, shipowner in London, against whom arrestments had been used, ad fundandam jurisdictionem, concluding for payment of the sums contained in two bills of exchange: That the said summons was executed edictally against both defenders, of the said date, and was also served personally on the defender Fioretti, on July 3, 1867: that the induciæ expired on the 18th of July 1867, and the summons had accordingly been lodged for calling on that day, before Lord Ormidale.

That by section 29 of the Act of Sederunt, 11th July 1828, it was provided, inter alia, that “no cause shall be enrolled earlier than on the second lawful day after it shall have been called, unless special leave shall be given by the Inner-House.” The time allowed for the defenders entering appearance would expire on Friday the 19th July 1867, at seven o'clock p.m.; but if no appearance was made (and the petitioners had reason to believe that no appearance would be entered) it would be too late to get the case enrolled in the Roll of Undefended Causes for the day following (Saturday), which was the last day of Session, whereby the pursuers would be prevented obtaining decree in absence till the meeting of the Court in November. That in the action raised by the petitioners any delay would materially affect their interests and chance of recovering the sums claimed; and the present application had been rendered necessary in the circumstance above set forth.

The petition prayed the Court to grant special leave and authority to the clerk or keeper of the Outer-House Roll of Defended and Undefended Causes, in the event of no appearance being made in said action for both or either of said defenders, to enrol said cause in the Roll of Undefended Causes for Saturday first; or to do otherwise, &c.