Scottish Court of Session Decisions

John Marshall, for defenders, submitted that the motion ought only to be granted on consignation by the pursuer of the expenses in which he had been found liable, on the ground that the motion of the pursuer was merely to cause delay. He cited Conacher, 1 Mar. 1859, 21 D. 597; and Sager's Assignee, 10th June 1841, 3 D. 1005.

Pattison, for pursuer, in reply, cited Wallace, 7th Dec. 1839, 2 D. 204; and Nisbet, 19th Nov. 1840, 3 D. 332.

Lord President—I have seldom seen a party less entitled to favourable consideration from the Court than this pursuer. This is not the first time he has been before us, and now he comes with this proposal to refer the matter to the oath of the defender in circumstances that satisfy me that it is entirely for the purpose of delay. It is out of the question that he can have any hope of establishing his case by the oath of these trustees. The question is one for the discretion of the Court. There may be some weight in the point which was suggested, that the mode of proof introduced and sanctioned by the Act 1679 is somewhat diiferent from a general reference to oath, and in a certain sense the pursuer may be held entitled to make this reference, but I have no doubt that it is within the discretion of the Court to allow a reference in this case, only on condition of payment or consignation of the expenses for which the defenders have obtained a decree, dated the 11th of this month. We shall make it a condition of sustaining this reference that these expenses are consigned within eight days.

Lord Curriehill—i think it is clearly established that the allowing a reference to oath after a final judgment, and the terms on which it shall be allowed, are matters entirely within the discretion of the Court. And that discretion will be exercised with regard not merely to the nature of the case, but more particularly with regard to the conduct of the parties. Looking to the interlocutors which have been pronounced in this case, and which we have now before us, I entirely concur with your Lordship.

Lord Deas—I have no doubt, on the one hand, that in general a party has a right to refer to oath even after a final judgment, and, on the other hand, that the Court may annex such conditions as they think fit. And there is no stronger case for imposing conditions than when it is apparent that a party has been causing delay in an action. The reference may be reasonably supposed to be for delay too. If any unfair use were attempted to be made of it, the Court might refuse it altogether.

Lord Ardmillan—It is very well settled that the right of reference to oath is not an absolute right. The Court has, and has exercised, the discretionary power of refusing to allow it when plainly it is sought for the purpose of delay. But there is a remedy within that, and that is, that the reference shall only be allowed on condition of consignation.