Scottish Court of Session Decisions

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Cite as: [1838] CS 16_398

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SCOTTISH_Court_of_Session_Shaw

Page: 398↓

016SS0398

Henderson

v.

Lumsden
No. 100.

Court of Session

1st Division

Jury Cause.

Jan 27 1838

Ld. Cockburn, Lord Gillies, Lord President, Lord Mackenzie, Lord Corehouse.

Miss Catherine Henderson, Pursuer.— Counsel:
M'Neill. James Lumsden, Defender.— Counsel:
Sol.-Gen.— Rutherfurd— G. G. Bell.

Subject_Process — Writings, Recovery of. — Headnote:

The pursuer of an action of damages for breach of promise of marriage, founded specially in her summons and revised condescendence on the letters written to her by the defender: before lodging his revised answers, the defender moved for a diligence to recover these letters: Held that it was fair between the parties that the defender should have access to his letters, and diligence granted accordingly.

Facts:

Miss Catherine Henderson, residing in Edinburgh, raised an action of damages, laid at £10,000, against James Lumsden, bookseller and publisher, Glasgow, for breach of promise of marriage. She founded in her summons and condescendence on the tenor of letters addressed to her by the defender. The defender admitted the existence of the correspondence, and that it indicated a hope which he had at one time entertained of contracting a marriage. After a revised condescendence had been lodged by the pursuer, specially referring to the letters written by the defender, he, before lodging his revised answers, moved for a diligence to recover certain documents, and especially all his own letters which were extant in the pursuer's hands. The pursuer resisted this, alleging that the defender was bound to know the tenor of his own letters, sufficiently to enable him to make his averments, and that, hoc statu, at least, he had no right to get access to them.

The Lord Ordinary “refused the defender's motion for a diligence, hoc statu.”

The pursuer reclaimed.

Lord Gillies.—I think the diligence ought to be granted. It is only fair that the defender should be allowed to see the letters written by himself. He cannot recollect all that he wrote, and I do not perceive any just ground for withholding from him a sight of his own letters.

Lord President.—I am of the same opinion. It is only fair between the parties that the defender should see his letters.

Lord Mackenzie.—I entirely concur. If the defender be an honest man he may admit more than the truth, as he cannot recollect the precise tenor of these letters. I think he ought not to be exposed to that hazard: and I do not see what injury can be done to the pursuer by ordering production of the defender's letters.

Lord Corehouse.—I concur. I think this a strong case for granting the diligence craved. The letters of the defender are expressly founded on by the pursuer in her action. She has them all in her possession, and she shapes her averments in conformity to their tenor. I think the defender ought equally to have access to these letters; and, at the same time, if the pursuer wishes to have access to the letters written by her, which are now in the defender's hands, I would grant her a diligence for recovering them too. I can see no just ground of objection to our granting the diligence craved by the defender.

The Court then recalled the interlocutor of the Lord Ordinary, and remitted to his Lordship to grant a diligence to the defender as craved.

Solicitors: J. M'Crachen, S.S.C.— J. Ronald, S.S.C.—Agents.

SS 16 SS 398 1838

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