Scottish Court of Session Decisions

Mr and Mrs Mercer having raised an action against the trustees of the late James Anstruther (Mrs Mercer's father), in which inter alia they concluded for reduction of their marriage-contract, by which they alleged Mrs Mercer renounced certain rights competent to her under the marriage-contract of her father and mother, under essential error of the nature of these rights, the Court allowed the pursuers a proof of their averments relative to the circumstances under which their marriage-contract was executed. Mr and Mrs Mercer are both resident in the Mauritius. In July last the pursuers petitioned the Court to allow both Mr and Mrs Mercer to be examined on commission. The Court allowed this in the case of Mr Mercer, on condition that Mrs Mercer was examined in Court. An affidavit was now presented to the effect that Mrs Mercer's health was in too critical a state to permit her undertaking so long a voyage for some time, and the pursuers again petitioned the Court to allow Mrs Mercer's evidence to be taken on commission.

Watson and Shand for pursuers

Solicitor-General and Balfour in answer.

The Court granted the petition. It was in general highly inexpedient to allow parties to be examined as witnesses for themselves, except in presence of the Court and of the jury, and subject to cross-examination. But the circumstances of this case were very peculiar. The distance was very great; Mrs Mercer's health was delicate; it would be unreasonable to expect her to come home now; and if the proof was to be delayed till she was able there might be interminable delay, and, possibly, her evidence might be lost. The Court accordingly allowed Mrs Mercer to be examined on commission, reserving all objections to the admission at the trial of the deposition, in case of a change of circumstances.