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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Neill Petitioner [1911] ScotLR 830 (17 June 1911)
URL: http://www.bailii.org/scot/cases/ScotCS/1911/48SLR0830.html
Cite as: [1911] ScotLR 830, [1911] SLR 830
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SCOTTISH_SLR_Court_of_Session
Page: 830↓
Court of Session Inner House First Division.
(Single Bills.)
Facts:
A ship steward, the pursuer in an action of divorce, before the action was called in Court had to start on a voyage which would necessitate his absence for at least a year. In an application at his instance the Court granted commission to take his oath de calumnia (and also his evidence) to lie in retentis—previous notice of the commission being given to the defender and proof thereof exhibited to the commissioner.
On 17th June William Watson Neill, ship steward, Partick, presented a petition to the First Division in which he craved the Court to grant commission to take his oath de calumnia, and also his evidence, in an action of divorce at his instance to lie in retentis till the case had been called.
The petition stated—“That the petitioner has raised in the Court of Session an action of divorce against Mary Ann Murray or Neill his wife, as set forth in the summons herewith produced. The said summons was signeted on 14th June 1911, and was served on the defender personally on the same day. That the petitioner is in the employment of Messrs Weir & Company, of Glasgow and Liverpool, as a ship steward, and is absent from this country on long sea voyages. That he returned to this country recently, when he became aware of the circumstances in respect of which he has raised the said action of divorce. That the petitioner is to accompany his ship, which is to sail from the port of Jarrow-on-Tyne, on Friday the 23rd, or Saturday the 24th June 1911, on a voyage to San Francisco, and he will be absent from this country for at least one year. That in these circumstances it will be necessary that the oath de calumnia, and also the evidence of the petitioner, should be taken on commission before his departure from this country on said 23rd or 24th June 1911. That as said action of divorce has not been called in Court, the petitioner is unable to move the Lord Ordinary, before whom the action may come to depend, for commission and diligence to take the oath de calumnia, and also the evidence of the petitioner as pursuer in the said cause. May it therefore please your Lordships to grant commission and diligence to take the oath de calumnia of the petitioner, and also his evidence on oath, and to receive his exhibits and productions, if any, and to direct the commissioner to be appointed by your Lordships to seal up the oath, deposition, and productions, and to transmit the same to the Clerk of Court, there to lie in retentis subject to the orders of the Court, or of the said Lord Ordinary in the cause; or to do further or otherwise as to your Lordships shall seem proper.”
On the petition appearing in the Single Bills counsel for the petitioner moved the Court to grant the prayer of the petition. He referred to Scott, Petitioner, July 20, 1866, 4 Macph. 1103, 2 S.L.R. 217.
The
The interlocutor pronounced was—
“Grant commission to Mr R. A. Lee, Advocate, to take the petitioner's oath de calumnia, to lie in retentis until the action has been called in Court and enrolled before a Lord Ordinary, previous notice being always given to the defender and proof thereof exhibited to the commissioner before the oath is taken: Further, grant diligence, at the instance of the petitioner—the pursuer
Page: 831↓
of the action referred to in the petition—for citing him, a necessary witness on his own behalf whose evidence, owing to his being about to leave the country, is in danger of being lost, and grant commission to the said Mr R. A. Lee to take the oath and the examination of the petitioner, and to receive any exhibits and productions made by him in regard to the matter at issue between the parties to the said action, at such time and place as the said commissioner may appoint, due notice thereof being given to the defender or her known agent; dispense with the adjustment of interrogatories, and appoint the deposition of the witness and productions, if any, made by him, to be sealed up by the commissioner and immediately thereafter transmitted to the clerk of the process, there to lie in retentis subject to the future orders of the Court.”
Counsel for Petitioner— Macgregor. Agent— James G. Bryson, Solicitor.