Scottish Court of Session Decisions

By deed of submission dated 8th, 10th, 18th, and 21st January 1904, entered into between John Nimmo & Son, Ltd., 163 Hope Street, Glasgow, and the Collieries Consolidation Syndicate, Limited, and the United Collieries, Limited, both incorporated under the Companies Acts 1862 to 1890, it was agreed that all questions arising under or relating to the adjustment of a certain minute of agreement should be referred to the Right Hon. Charles Scott Dickson, Lord Advocate for Scotland, as arbiter.

The arbiter having accepted office, in the course of the proceedings under the reference allowed a proof, and it was found necessary for Nimmo & Son to recover certain documents mentioned in a joint specification. The arbiter accordingly pronounced the following orders:—On 13th November 1905.—“The arbiter … before answer allows both parties a proof of their respective averments and to each a conjunct probation; appoints the proof to proceed before him on … Further respectfully recommends to the Lords of Council and Session to grant warrant for citing witnesses and havers on the application of either party.”

On 25th November 1905:—“The arbiter, having considered the note for John Nimmo & Son, Limited, appoints the Mayor or Town-Clerk of Rotherham his commissioner in Rotherham for taking the deposition of D. W. Rees, secretary of the North Central Wagon Company, Limited, Rotherham,

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a witness for the said John Nimmo & Son, Limited, and as a haver in terms of the joint specification, and the arbiter respectfully recommends the Lords of Council and Session to sanction and confirm the appointment of the said commissioner named by the arbiter, and to require and enforce the attendance of the said D. W. Bees before the said commissioner.”

“The arbiter, having considered the joint specification of documents for which diligence is craved by the parties, respectfully recommends the Lords of Council and Session to grant diligence against havers at the instance of both or either of the parties for recovery of the documents called for in the said joint specification, and the arbiter grants commission to J. Wright Forbes, Isquire, Advocate, Edinburgh, to take the oaths and receive the exhibits of the havers, to be reported quam primum.”

John Nimmo & Son, Ltd., accordingly presented this petition.

The petitioners stated that in order to carry the said orders into effect it was necessary that diligence should be granted for citing witnesses and havers, and that authority should be interponed to and the appointment of the said commissioner in Rotherham named by the arbiter sanctioned and confirmed, and warrant granted for letters of diligence for citing the said D. W. Rees as a haver and a witness to appear before the said commissioner, and that in common form of law at the instance of the petitioners.

The prayer of the petition craved (1) warrant to cite havers, (2) warrant to cite witnesses, and (3) in particular “to interpone authority, sanction and confirm the appointment of the said commissioner in Botherham named by the writer, and to grant warrant for letters of diligence at the petitioners' instance for citing the said D. W. Rees as a haver and a witness to appear before the said commissioner, or to do otherwise or further in the premises as to your Lordships shall seem proper.”

The petition was unopposed. Counsel for the petitioners cited the following cases in support of the application:— Blaikies Brothers v. The Aberdeen Railway Company, July 8, 1851, 13 D. 1307; Highland cay Company v. Mitchell, May 30,1868, 6 Macph. 896.