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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Simmies v. Burnet & Reid (Gordon's Trustees) [1875] ScotLR 12_622 (14 July 1875)
URL: http://www.bailii.org/scot/cases/ScotCS/1875/12SLR0622.html
Cite as: [1875] SLR 12_622, [1875] ScotLR 12_622

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SCOTTISH_SLR_Court_of_Session

Page: 622↓

Court of Session Inner House First Division.

Wednesday, July 14. 1875.

12 SLR 622

Simmies

v.

Burnet & Reid (Gordon's Trustees).

Subject_1Process
Subject_2Jury Trial
Subject_3Motion for Postponement.
Facts:

The defenders in an action set down for trial by jury in the Summer Vacation moved the Court to postpone the trial until the Christmas following, in order that the result of a commission to recover letters in India might be learned. Held that there had been undue delay in the inquiry as to the existence of the documents in question, and motion refused.

Observations by Lord President and Lord Ardmillan on the circumstances in which the Court would grant such a motion.

Headnote:

The defenders in this action, which was for the reduction of a codicil executed by the late Miss Gordon in favour of Mr Reid, advocate, Aberdeen, moved the First Division of the Court for a postponement of the trial. The case was set down in the list of Jury Trials for the ensuing vacation, but under the motion it would have been delayed until the Christmas recess. In support of the motion it was urged that it had become necessary to learn the result of a commission granted in causa for the purpose of recovering any letters bearing on the case which might be in the possession of a person now in India. On the other hand the pursuers opposed the motion, and inter alia stated that one of their witnesses was now very aged and infirm, and that there might be considerable risk of his not surviving until another recess.

 Judgment:

At advising—

Lord President—This is a question for the exercise of the discretion of the Court. Now, before the Court can exercise its discretion in favour of such an application we must feel satisfied that the party making it has been reasonably diligent, for a pursuer in such a case as the present might suffer by any unnecessary postponement.

The summons in the action before your Lordships was executed on the 23d of March last, and it may fairly be supposed that there had been intimation of an intention to challenge the deed made to the defenders before that date; but even were that not so, the defenders put off to the very last moment any enquiry as to whether any letters exist of the nature alleged, and now, at the eleventh hour, it occurs to them that this person in Calcutta may have such letters. I am not disposed to encourage such dilatory proceedings, and I am therefore for refusing the motion.

Lord Deas—I concur.

Lord Ardmillan—I have come to the same conclusion. This case is not on the same footing as one in which the evidence to be recovered under the diligence is known to exist, but the delay is asked in respect of an enquiry for the purpose of ascertaining whether any such evidence does exist.

Lord Mure—I quite concur. The parties here might, by telegram or otherwise, have had more information.

The Court refused the motion.

 Counsel:

Counsel for Pursuers (Simmies)— Dean of Faculty (Clark), Q.C., and Balfour. Agents— J. & R. D. Ross, W.S.

Counsel for Defenders (Gordon's Trustees)— Solicitor-General (Watson), Asher, and Keir. Agents— Pearson, Robertson, & Finlay, W.S.

 1875

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URL: http://www.bailii.org/scot/cases/ScotCS/1875/12SLR0622.html