Scottish Court of Session Decisions

This was a motion by one of the claimants in this multiplepoinding for a commission to Nova Scotia, to take the evidence of three witnesses who reside there, the depositions to lie in retentis, and it came before the Court on report of Lord Barcaple, the Ordinary in the case. The motion is made in a process of multiplepoinding and examination brought by Mr Barstow, judicial factor on the estate of the late William Maltman, purser in the East India Company's service. Maltman died at Elie, Fifeshire, 3d March 1854, intestate and unmarried, leaving considerable property. Gavin Maltman, in Nova Scotia, a younger brother, was sole heir-at-law and next of kin, and was last heard of about 1849.

After very extensive searches and advertisements in the British American Colonies, it is believed and averred by some of the claimants that he was shipwrecked on the coast of New Brunswick, on the 30th October 1855.

The object of the commission was to examine those parties, with the view of founding on their evidence, as the only vestige to be obtained.

Trayner, for the claimants, maintained that he was entitled to this commission, even although the record had not been closed on the ground of penuria testium, and he offered to pay all expenses, including a reasonable sum for the employment of an agent in Nova Scotia to take charge of the interests of his opponents.

The Court unanimously refused to grant the commission, on the ground that the claimant, when the record was closed, might get an order for proof, which would serve his purpose equally well as a commission now.