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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Macdonald v. Forsyth [1898] ScotLR 35_634 (19 March 1898) URL: http://www.bailii.org/scot/cases/ScotCS/1898/35SLR0634.html Cite as: [1898] ScotLR 35_634, [1898] SLR 35_634 |
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Page: 634↓
[Sheriff of Inverness, Elgin, and Nairn.
In an appeal for jury trial from the sheriff court, a pursuer allowed to amend his record upon payment of one guinea of expenses.
This was an action of damages raised by Robert Macdonald against Charles Forsyth for injuries sustained by the pursuer while driving from Elgin to Lossiemouth in a dog-cart hired by him from the defender.
The Sheriff-Substitute ( Rampini) having allowed a proof, the pursuer appealed for jury trial to the Court of Session, and on 10th March 1898 obtained an order for issues.
The pursuer lodged an issue, and at the same time put in a minute setting forth certain amendments which he desired to make on the record, and he craved the Court to open up the record and allow the same to be amended in terms of the minute, and thereafter of new to close the record.
The nature of the proposed amendments will be seen from the following extracts from the record, where the amendments are indicated by brackets:— “(Cond. 4) When about two miles from Elgin, at a point on the road leading to Lossiemouth, nearly opposite Myreside Farm, the left-hand wheels of the dog-cart, which was at the time being driven by the defender's servant, left the road and went up a bank on the left-hand side of the road, with the result that the dog-cart tilted over on its right side, and the occupants were thrown, or fell, violently to the ground. [The said dog-cart had, owing to the fault of the defender as after mentioned, not been provided with lights, and it was therefore the duty of the said Robert Cameron to exercise particular care and caution in driving the said dog-cart. This he failed to do, and drove the horse in such a careless and negligent manner that the dog—cart was partially drawn off the road and was upset in manner set forth.]” “(Cond. 7) The said accident was caused by the defender's failure in duty, or negligence in not providing proper lights for the said dog-cart, or in not providing a careful, competent driver [or by the fault of the defender's servant the said Robert Cameron, or by one or more of these causes.]”
The defender submitted that, as a condition of the amendment being allowed, the pursuer should be found liable in expenses since the closing of the record.
The Court opened up the record, allowed the pursuer to amend the same in terms of his minute on condition of his making payment to the defender of the sum of £1, 1s., and the said amendments having been made and the defender having answered the amendments at the bar, of new closed the record and approved of the issue proposed by the pursuer as adjusted.
Counsel for the Pursuer— Jameson, Q.C.— C. D. Murray. Agent— Alex. Mustard, S.S.C.
Counsel for the Defender— Salvesen. Agents— Morton, Smart, & Macdonald, W.S.