Scottish Court of Session Decisions

The Western Ranches, Limited, presented a petition under the Companies (Memorandum of Association) Act 1890 (53 and 54 Vict. cap. 62) for confirmation of alteration of their memoradum of association.

Mrs Kemp or Nelson and others, trustees of the late Thomas Nelson, lodged answers to the petition, and after a report by Mr. Charles Logan, W.S., to whom the petition and answers had been remitted, the Court on 20th October 1897 allowed the petitioners a proof of their averments and the respondents a proof of their answers.

On 23rd November the petitioners presented a note craving the Lord President to move the Court to grant commission to Henry J. Sheldon, Chicago, to examine certain named witnesses in the United States and “such additional witness or witnesses as the petitioners may find it necessary to examine.”

The petitioners averred that the witnesses to be called by them, so far as resident in the United States, would not be in this country at the date of the proof, and that consequently the petitioners would be deprived of their testimony if a commission were not granted.

Among the named witnesses was Mr John Clay junior, Chicago, senior partner of the firm which acted as agents for the company in America. The respondents averred in their answers that the proposal to alter the memorandum of association emanated from the said firm, and this was not denied by the petitioners.

The petitioners further suggested that interrogatories should be dispensed with.

The respondents objected to the note, and relying on the case of M'Lean … Hope v. Fleming, March 9, 1867, 5 Macph. 579, submitted (1) that all the witnesses proposed to be examined must be named; (2) that interrogatories must be adjusted; and (3) that Mr Clay's examination should take place before the Court of Scotland, he being, if not the true dominus litis, at least the most important individual concerned in the case.

The respondents referred to the Evidence Act 1866 (29 and 30 Vict. cap 112), and to the Act of Sederunt, February 16, 1841.

Section 17 of the said Act of Sederunt provides that “when it shall be made out upon oath to the satisfaction of the Court that a witness resides beyond the reach of the process of the Court and is not likely to come within its authority before the day of trial, or cannot attend on account of age or permanent infirmity, or is labouring under severe illness which renders it doubtful whether his evidence may not be lost, or is a seafaring man, or is obliged to go into foreign parts, or shall be abroad and is not likely to return before the day of trial, it shall be competent to examine such witnesses by commission on interrogatories to be settled by the parties, and approved of by one of the principal Clerks of Session.”