Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1873/10SLR0642.html
Cite as: [1873] ScotLR 10_642, [1873] SLR 10_642

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SCOTTISH_SLR_Court_of_Session

Page: 642↓

Court of Session Inner House First Division.

Friday, July 18. 1873.

10 SLR 642

Tannet, Walker & Co.

v.

Hannay & Sons.

Subject_1Diligence.

Facts:

Where one of the parties in a jury trial asked for a commission and diligence to recover “all letters and memoranda, telegrams, reports or written communications” sent to the other parties by their foreman or workmen in reference to the subject in dispute, as also all similar, documents sent by one of the firm to his co-partners,— held that the former might be recovered, but the latter could not.

Headnote:

This was a case in which issues had been adjusted, and the defenders asked for a commission and diligence to recover certain documents. Among other articles of their specification were the following;—

“(2) All letters and memoranda, telegrams, reports, or written communications sent or made to Tannet
Page: 643↓
Walker & Co., or to any of the partners of that firm, or to any one on their behalf, by Thomas Harrison or Matthew Duncan, their foreman, or other person or persons employed by them in connection with the machinery mentioned on record, relating or referring to said machinery, or to the articles or things supplied by Hannay & Sons to Tannet, Walker & Co., or to any matter mentioned or referred to on record in either action prior to 19th April 1872.” “(4) All letters, memoranda, telegrams, or written communications between Mr Benjamin or Walker, of the firm of T. W. & Co., to his other co-partners in the firm or to the firm, or by the firm or any one or more of the co-partners thereof to him, relating to the machinery mentioned on record, or to the furnishing or fitting of the same, prior to April 19, 1872.”

The pursuers objected to these two articles.

At advising—

Judgment:

Lord President—The case of Livingstone v. Dinwoodie is an important authority, because it was deliberately considered, and after consultation with the other Division; but it is a case which differs from the present, and I am quite satisfied with the distinction drawn by Mr Watson. The letters of workmen which are asked for, if not evidence of themselves, may be made so, and therefore I think the rule laid down in Livingstone v. Dinwoodie, does not apply. But if these letters can be made evidence, they may be very important. As regards the fourth article of the specification, however, I do not feel disposed to allow it. I don't think that communications between the partners can be recovered except on very special grounds, and none such have been assigned here. If one of the partners had been sent to another country with certain instructions, it might have been necessary to discover from correspondence what these were, but nothing of that kind is suggested here, and I am for refusing article four.

The other Judges concurred.

Counsel:

Counsel for Tannet, Walker & Co.—Solicitor-General ( Clark), and Blair. Agents— Hunter, Blair, & Cowan, W.S.

Counsel for Hannay & Sons.— Balfour and Watson. Agents— Webster & Will, W.S.
1873

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