Scottish Court of Session Decisions

On 13th January 1888 a submission under the Land Clauses Consolidation (Scotland) Act, 1845, was entered into between Miss Catherine Crichton and others, proprietors of certain subjects in Burntisland, and the North British Railway Company, as to the value of these subjects, which had been taken by the railway company.

Arbiters were appointed, who allowed a proof, and issued an order, which contained the following:— “… The arbiters respectfully recommend the Lords of Council and Session, and the Sheriffs of the Lothians and Peebles and county of Fife, to grant warrant for citing witnesses and havers on the application of the parties.”

A petition was accordingly presented to the Second Division of the Court of Session by Miss Crichton, to which was annexed a specification of the documents sought to be recovered.

The petitioners prayed the Court to “appoint a commissioner to receive all papers and productions from havers, and to grant warrant to messengers. The petitioners prayed the Court to “appoint a commissioner to receive all papers and productions from havers, and to grant warrant to messengers at-arms and sheriff-officers for the citation of havers to appear and produce on oath the documents called for in the specification annexed hereto before the commissioner aforesaid, and that at such time and place as he may fix for that purpose; and also to grant warrant in ordinary form for the citation of havers and witnesses on behalf of the petitioners, to appear before the said arbiters within the board room of the directors of the said North British Railway Company on the 2nd day of July 1888, at half-past ten o'clock forenoon.”

The petition was opposed by the respondents.

The Court, on the ground that they had no knowledge of the facts of the case, stated that the specification should first have been approved of by the arbiters, and that then, if necessary, the petitioners might have applied to the Court.

The following interlocutor was pronounced:—“ Grant warrant for the citation of witnesses at the instance of the petitioners before the arbiters named in the petition, within the board room of the directors of the North British Railway Company at Edinburgh, on the 2nd day of July 1888, at half-past ten o'clock forenoon, and at such other place or places, and at such other time or times, as the said arbiters shall appoint for the examination of witnesses: Quoad ultra refuse the prayer of the petition.”