Scottish Court of Session Decisions

On 14th July 1903 James Anderson, carpenter and contractor, Eastgate, Inverness, raised an action against Donald Morrison, tea merchant and dealer, Balblair Road, Nairn, in which he sought to recover £500 as damages for slander. His averments were to the effect that in Messrs Macdonald, Fraser, & Company's mart at Inverness on the 16th June 1903, in the hearing of certain witnesses, the defender, after putting out his tongue at the pursuer, had said to him—“You are a damned fraud, a cheat, and a swindler, and your father before you, and the whole lot of you,” and had accused the pursuer of having used in executing certain contracts only two-fifths of the nails and one-half of the screw-nails which an honest contractor would have used.

Issues were adjusted, and the cause was put down for trial at the Summer Sittings of 1904. In July 1904, prior to the rising of the Court, counsel moved on behalf of the pursuer that his evidence should be taken on commission as the trial could not proceed without it, and the pursuer was unable to attend owing to a nervous breakdown, the effect of meningitis. A doctor's certificate was produced. The defender opposed this motion on the ground that the pursuer's personal attendance was necessary, and moved that the trial should be postponed. The latter motion was granted.

The cause was put down for trial at the Spring Sittings of 1905, when the motion was again made on behalf of the pursuer that his evidence should be taken on commission. His doctor certified that he could not attend the trial, and would not be able to do so for at least a year, and his counsel intimated that his evidence was essential. The defender again opposed the motion on the ground that for his case it was necessary that the pursuer should attend so that he should be able to cross-examine him before the jury.