Scottish Court of Session Decisions

In this case, which was an action to recover damages in respect of an alleged breach of contract, issues had been settled and notice given in the usual way by the pursuer, that the trial should take place at Edinburgh, at the sittings in July. The defender, who had been admitted to the benefit of the poor's roll, then gave notice that he was to move the Court to order the trial to take place at Aberdeen in place of Edinburgh; and at same time, there was lodged with the clerk an affidavit by his agent to the effect that he would require to examine at least ten and perhaps twenty witnesses at the trial, all of whom resided in Aberdeen or its neighbourhood, but that from his poverty he was unable to bring these witnesses to Edinburgh, while his counsel and agent were willing to go down and attend the trial at Aberdeen. When the motion was first called, it was delayed for a few days in order that the pursuer might see the defender's affidavit, and if necessary lodge a counter affidavit. Accordingly there was lodged a counter affidavit by the pursuer's agent, to the effect that although the onus probandi lay upon him, he meant to adduce only four or five witnesses; that these were in the lower walks of life; that they could be brought to Edinburgh from Aberdeen the day before the trial by the steam-boat at a very trifling expense; and that the expense, therefore, of bringing these witnesses to Edinburgh would be much less than the expense of bringing counsel and agents to Aberdeen.

On the case being moved to-day,