Scottish Court of Session Decisions

At advising—

Lord President—This is a question for the exercise of the discretion of the Court. Now, before the Court can exercise its discretion in favour of such an application we must feel satisfied that the party making it has been reasonably diligent, for a pursuer in such a case as the present might suffer by any unnecessary postponement.

The summons in the action before your Lordships was executed on the 23d of March last, and it may fairly be supposed that there had been intimation of an intention to challenge the deed made to the defenders before that date; but even were that not so, the defenders put off to the very last moment any enquiry as to whether any letters exist of the nature alleged, and now, at the eleventh hour, it occurs to them that this person in Calcutta may have such letters. I am not disposed to encourage such dilatory proceedings, and I am therefore for refusing the motion.

Lord Deas—I concur.

Lord Ardmillan—I have come to the same conclusion. This case is not on the same footing as one in which the evidence to be recovered under the diligence is known to exist, but the delay is asked in respect of an enquiry for the purpose of ascertaining whether any such evidence does exist.

Lord Mure—I quite concur. The parties here might, by telegram or otherwise, have had more information.