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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Willcox and Gibbs' Sewing Machine Co. v. Stirling & Sons [1869] ScotLR 7_98 (19 November 1869)
URL: http://www.bailii.org/scot/cases/ScotCS/1869/07SLR0098.html
Cite as: [1869] SLR 7_98, [1869] ScotLR 7_98
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SCOTTISH_SLR_Court_of_Session
Page: 98↓
Court of Session Inner House First Division.
v.
Facts:
In a trial for breach of patent, the successful parties were allowed the expenses (I) of three counsel; (2) of precognoscing a scientific witness, whose own charge for drawing his report had been allowed; (3) of passage-money, maintenance and fee to a principal witness, who, though not a party to the action on the record, was in fact the party upon whose information the case mainly depended, and was interested in the case; but (4) were not allowed the expense of precognoscing him.
This was a discussion on a note of objections to the auditor's report in regard to the expenses of a jury trial last July, in which the pursuers were successful in an action against the defenders for breach of patent. The pursuers are a company carrying on business as manufacturers of sewing-machines at No. 135 Regent Street, London, and in New York. The company was duly incorporated according to the laws of the State of New York; and Mr Will cox is president of the company. It was stated that Mr Gibbs, who resides in Virginia, invented the machine; but that, being unable to carry on his patent, he sold it to the company, retaining, however, a small interest as a shareholder of the company. His precognition began—“I am one of the pursuers” but he was not one of the parties on the record. From the nature of the machinery it was essential to have his evidence, as the decision of the case mainly turned upon it; but the defenders maintained that his evidence should have been taken by commission, as being less costly than bringing him over here. They also objected to the pursuers' account for precognoscing a scientific witness, whose evidence was necessary, but who had had his own charges for drawing his report allowed. They also objected to the charge for precognoscing Mr Gibbs; and to the expense of three counsel for the pursuers, they having had only two.
Balfour for the pursuers.
Watson in reply.
The Court, considering Mr Gibbs' presence essential, allowed a guinea a-day for thirty-five days for the time he was away from Virginia as a witness at the trial; six guineas for expenses between New York and Virginia; and £52 for passage money between New York and England (including maintenance); they also allowed the expenses of precognoscing the scientific witnesses, and of three counsel to the pursuers; but disallowed the charge for Mr Gibbs' precognition.
Agents for Pursuers— Macnaughton & Finlay, W.S.
Agent for Defenders— James Webster, S.S.C.