Scottish Court of Session Decisions

A question regarding the citation of a witness residing outside the jurisdiction of the Court, under the Act 17 and 18 Vict., c. 34, sec. 1, arose in this case, which was a petition and complaint at the instance of the Duke of Athole against Alexander Robertson for breach of interdict. The respondent had denied the right of the complainer to levy pontage dues from those making use of the bridge over the Tay at Dunkeld, and had further himself on several occasions in February 1868 forced a passage across the bridge without paying toll. The complainer in consequence obtained an interdict against the respondent, who nevertheless persisted in crossing without payment. This petition and complaint was therefore presented. The respondent failing to appear, the Court, on 9th January 1872, granted warrant to arrest and imprison him, but as he had fled the country this order could not at the time be enforced. In the present year he returned to Scotland, and recommenced his practice of using the bridge without payment. The complainer called upon him to appear before the Court, but without effect, and in consequence was obliged to cause him to be apprehended under the warrant of 1872.

The respondent now lodged answers. He averred inter alia—“(4) The whole statements of the complainer are denied. The respondent was on 16th May current informed that he could pass the toll as often as he so pleased, and he has since availed himself of the said permission without payment being demanded. The complainer has himself condoned any offence which may have been committed.”

The Court having allowed both parties a proof, the respondent presented a note to the Lord President praying his Lordship to move the Court under the Act 17 and 18 Vict. cap. 34, sec. 1, to order a warrant of citation commanding the complainer to attend the proof. The complainer was at the time living in London, and the note set forth that he was “an important witness for the respondent.”

Argued for the respondent—The complainer was a necessary witness on the question of condonation; also as to whether he had really authorised the proceedings, and as to the true proprietorship of the bridge.

Argued for the complainer—The matter was by the Act entirely within the discretion of the Court, who would not order a witness to attend unless they were satisfied that there was a high probability of knowledge on his part, and that it was impossible to get the same evidence from others within the jurisdiction of the Court. But the complainer knew nothing personally about the matter, and the respondent had averred nothing which the complainer only could prove. As to condonation, that was not averred by the respondent; at least he had not stated by what specific acts the complainer had condoned his offence.

Authority— Allen v. Duke of Hamilton, 1867, 2 L.R. (C.P.) 630.

At advising—