Scottish Court of Session Decisions

Lord President—I am clearly of opinion that this application cannot be granted. This is a deed in which a great many people not only may be but are, in point of fact, interested, and the petitioner is in no greater degree interested than many others. Now I know no case in which the Court granted authority to take a deed out of the country on grounds so slender as are here alleged. The cases referred to have very little application. The case of Jolly received great consideration in the other Division, and it was not without much hesitation that we granted the application. The question in the Court of Dublin related to the signature of a very old man who very seldom signed his name at all. The last signature he had been known to make was to this deed, and it was said that by production of this deed it would be demonstrated that the signature founded on by the other party was a forgery. That was a strong reason for allowing the deed to be transmitted out of the country. In the circumstances a copy would have been of no use. Nothing but the deed itself was of any avail. In the last case the authority is all the other way. In the present case there is no ground for the application. The affidavit is framed in the most meagre way. The attorney in New York says that an office copy of that document will not be competent evidence by the law of the State of New York. Now I don't know what that means. If it means that, by the law of New York, when it is impossible to get the principal deed, the contents cannot be proved in any other way, all I shall say is that I don't believe that to be the law either of New York or of any civilised country. Therefore I am for refusing the petition.

Lord Curriehill—I am very clearly of the same opinion. When a deed is put on record for preservation, parties having an interest in it trust that it will be found there when it is wanted, and nothing would have a greater tendency to shake the confidence of the public in our records, that, if when they went to find the deed, they were to discover that it had been sent across the Atlantic as is here proposed. No precedent has been shown for our granting the prayer of this petition, and if there had, I should have submitted that the matter required very careful consideration. The modern practice is, that when the production of a deed is indispensable, an official is sent with it, in order that he may produce it when required.

Lord Deas—I am of the same opinion. It has not been shown to me that this document could not be made competent evidence. All that is shown is that an office copy will not be competent evidence. That may be quite true, but it may be easy to make an office copy competent by parol evidence, and there would be nothing out of the way in that, for it would be just what we do ourselve in many cases.

Lord Ardmillan—I concur. This is not like the case of Dunlop. Many parties are interested in this deed, and one of them asks to have it sent accross the Atlantic, and merely because of this affidavit. Supposing it to be true that the copy, per se, is not competent evidence, the question is, whether, if it is proved in the Court of New York that the principal document will not be transmitted, and if the authenticity of this copy is proved, and our judgment refusing to send the principal is produced, the copy will not be received as sufficient evidence? I should be surprised if in that case the proved copy would be of no avail. The case of Jolly was an exceptional case, and has no application to the present circumstances.