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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Lean and Hope v. Fleming [1867] ScotLR 3_270 (23 February 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/03SLR0270.html Cite as: [1867] ScotLR 3_270, [1867] SLR 3_270 |
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Page: 270↓
Held that under this Act it is only competent to grant commission to take the whole evidence in a cause where there is either an interlocutor of the Court to that effect or a consent of parties, and interlocutor of Lord Ordinary granting commission for the examination of certain witnesses abroad recalled, in respect it did not recognise the existing practice adopted in jury trials.
In this action, which is one of the enumerated causes that falls under the 47th section of the Act of 1850, Lord Kinloch pronounced the following interlocutor. He had previously pronounced an interlocutor appointing the proof to taken before himself:—“The Lord Ordinary, having heard parties' procurators, in respect it is stated by the defenders, Messrs M'Lean & Hope, that there are a number of witnesses in Constantinople, and on the coast of the Mediterranean Sea, whose evidence is of great importance in the case, and that there is danger of its being lost owing to their residence abroad, and their not being likely to come within the jurisdiction of the Court, grants commission to the British Consul-General, or to the Vice-Consul at Constantinople, to examine such witnesses as shall be adduced by the defenders on the subject-matter of the closed record in the conjoined actions, with the exception of the conclusion for damages in the action at the instance of George Fleming, which has been abandoned, due notice being given to the pursuers, to the satisfaction of the said commissioner, of the time and place fixed for the witnesses' examination before such examination proceeds, and appoints the depositions of the witnesses to be reported by the third sederunt day in May next.”
The pursuer reclaimed, and asked the Court to remit to the Lord Ordinary to appoint a day for taking the proof under the Evidence (Scotland) Act 1866.
At the discussion the defender departed from the interlocutor of the Lord Ordinary and made a motion that the whole of the evidence in the cause should be allowed to be taken on commission.
To-day the Court unanimously recalled the interlocutor, holding that under the Evidence Act it was only competent to grant commission to take the whole evidence in a cause when there was either an interlocutor of the Court to that effect or a consent by parties, but the Court could not entertain this motion under the reclaiming note. As to the power to grant commission to examine witnesses abroad, that could only be done under reference to the existing practice of making affidavit and adjusting interrogatories, and that practice was entirely disregarded by the Lord Ordinary.
The interlocutor, therefore, was recalled as incompetent, and expenses were granted to the reclaimers.
Counsel for Reclaimers— Mr Clark and Mr Watson. Agent— J. Henry, S. S. C.
Counsel for Respondent— Mr Young and Mr Mackenzde. Agents— White-Millar & Robson, S. S. C.
