Scottish Court of Session Decisions

In an action of damages by Misses Stead, against James Cox, trustee. on the sequestrated estates of Stead and Paterson, card-manufacturers, Leith Walk, and John Paterson, individual partner of that firm, the following issues went to trial:—

“It being admitted that the pursuers are proprietors of certain houses and machinery situate at Stead's Place, Leith Walk, and that the said subjects were held in lease by a copartnery carrying on business under the firm of Stead and Paterson, and that the defender is trustee on the sequestrated estate of the said Stead and Paterson, and John Paterson, the individual partner of that company.

“It being found by the Second Division of the Court of Session, by an interlocutor dated the 20th day of January, 1835, that the defender is liable to the pursuers for such damage as can be shown to have been sustained by them in consequence of the defender's retention, from the 30th day of June, 1831, to the 30th day of December, 1834, of the premises held in lease by the bankrupt, and of such loss and damage as the pursuers can instruct they have sustained by the deterioration of the said premises (beyond the ordinary wear and tear of such subjects), or by the disrepair into which they may have fallen during the time when they were retained by the defender, or the pursuers excluded by him from the possession and occupancy thereof.

“1. What loss and damage have the pursuers suffered by the said retention of the said premises?

“2. Whether the pursuers have suffered any, and what, loss and damage by the deterioration of the said premises, beyond the ordinary tear and wear during the period they were retained by the defender, or the pursuers excluded as aforesaid?”

The pursuers, in adducing their witnesses, called one, named James Morrison, who was accordingly sworn. The first question put to him was, whether he had served his apprenticeship with a certain party? Morrison answered in the negative, and that it was a brother of his who had so served. The pursuers then intimated that this witness had been called by mistake, in place of his brother, and that they had no more questions to ask.

The defender, on this, proposed to cross-examine the witness, and contended, that he had a right to do so, after the witness had once been put into the box, sworn, and interrogated by the pursuers.

The pursuers answered, that it was impossible to allow an advantage of that sort to be gained, in consequence of a mere mistake, as Morrison had not been, in any true sense, used as a witness by them.

The defender did not press his claim, and the witness was withdrawn without any deliverance being given by the Court.

The defender led no evidence, and