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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Fitzwilliam's Executors v. Freeland and Lancaster [1867] ScotLR 3_175 (24 January 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/03SLR0175.html Cite as: [1867] ScotLR 3_175, [1867] SLR 3_175 |
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Page: 175↓
When the Court remit to a Lord Ordinary to take proof under the Evidence Act he has no power, unless specially authorised, to grant diligence for the recovery of documents, or commission to take the depositions of aged witnesses or witnesses going abroad.
The Court remitted in this case to the Lord Ordinary, under the third section of the recent Evidence Act, to take a proof. When the case came before his Lordship, one of the parties lodged a specification of documents, to recover which he craved the Lord Ordinary to grant a commission and diligence. The Lord Ordinary expressed doubt as to his power to do so, because, although
Page: 176↓
he was the Lord Ordinary before whom the cause first depended, the Court had power under the Act to remit either to one of themselves or to any other of the Lords Ordinary. Be therefore feared that his powers were simply ministerial, and suggested that the application made to him should be renewed in the Inner House. The Court, after consulting with the other judges, expressed an opinion that the Lord Ordinary was right in the view which he had taken of the extent of his powers. The Court granted the motion, with a recommendation that in future, with the view of avoiding such questions and making it unnecessary to come back to the Court, parties should, when the remit is made to the Lord Ordinary, state whether they would require a commissioner to recover documents or to take the depositions of aged persons or witnesses going abroad. When this was done, the Court would, when remitting to the Lord Ordinary, confer upon him the necessary powers.
Counsel for Pursuers— Mr Watson. Agent— J. Henry, S.S.C.
Counsel for Defenders— Mr Millar. Agent— James Webster, S.S.C.
