Scottish Court of Session Decisions

The petitioner, who is a manufacturer in Hawick, raised an action of damages on 20th December 1865 against the defender, also a manufacturer there. Before the time had arrived for lodging defences, the petitioner presented an application to the Court for a commission to take Mr Nixon's deposition as a witness on commission to lie in retentis in regard to the matters set forth in the condescendence. The application was founded upon section 117 of the Act of Sederunt of 11th July 1828, which makes it competent for the Court to grant commission for the examination of witnesses whose evidence, owing to great age (not under seventy years), is in danger of being lost.

The petition was opposed by the defender, on the ground that the action was founded on allegations that he had been guilty of a series of frauds upon the petitioner extending over a period of fourteen years, and that the summons contained no specification of the time or place when the alleged acts of fraud were committed, but merely set forth that the pursuer had suffered damages to the extent of the random sum of £10,000. He also objected that the present application was a mere pretext for obtaining a precognition from him for the petitioner's guidance in the future conduct of the case against him.

The matter was discussed some days ago, when the Court could not see their way to granting the prayer of the petition [in the present state of the record, defences not being yet due. It came up again to-day, the record having been since closed.

An objection was suggested by Lord Deas, founded on the right of the pursuer to refer his case to the defender's oath, his Lordship observing that if the evidence taken suited his purpose, he might at once refer to the defender's oath. This objection was obviated by the pursuer agreeing to put in a minute waiving his right to refer to oath, but doubts were

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expressed as to whether a reference to oath would be competent after an examination of the defender in the way proposed.

The defender now objected that before the commission was granted the petitioner should be made to minute a waiver of the right which he had to abandon his action. The Court refused to accede to this request, and granted the prayer of the petition. The most serious objection was the want of specification; but there was a reason for that to be found in the nature of the case. There was a risk of the privilege which the Act of Sederunt had in view being abused, but there was the same risk in the granting of diligences, which was done every day. To refuse such an application as this would be attended with greater danger, and the Court had therefore a choice of difficulties before them. In regard to the objection that the result of allowing the commission might be to enable the petitioner to make out his case, the defender could not fairly complain of this, as it was to be assumed that he intended only to speak the truth, and it was not for the Court to protect him against the consequences of his doing so.