Scottish Court of Session Decisions

Subject_1 PART I.

PROCESS.

Smith and another, Petitioners

Date: 21 Jan 1802
Case No. No 5.

The deposition of a witness was allowed to be taken, to lie in retentis, although the summons was but just executed, and the parties not yet in Court.

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A petition was presented to the Court in the name of Alexander Smith and Robert Auchterlony, trustees under the settlement of Dr James Young, praying, that a witness, of whose deposition there was danger of their being deprived before the proof could be regularly taken, might be immediately examined, his deposition to lie in retentis till opened by authority of the Court. The summons in the action in which this evidence would be necessary, had been raised and executed, but the induciæ were not yet expired; and in the mean time, the witness, as he was in a very declining state of health, (to which effect a certificate by his physician was produced), was in great danger of dying. It appeared to the Court to be a case attended with difficulty, as there was here no one regularly in the field who could be called upon to object: They therefore first appointed the petition to be intimated on the walls the Outer and Inner House, and copies of it to be sent to the defenders in the action, who resided at a distance.

When the petition was again taken into consideration, it was mentioned from the bar, that, in the Douglas Cause, Sir John Stuart's deposition was taken in circumstances not very dissimilar. There, an action of declarator was already in Court, but the redaction in which his testimony was to be used was not yet come into Court. The two actions were, however, on similar grounds, and against the same defenders; so that there was a contradictor in Court, though not in the same cause. It was mentioned likewise, that in Baird against Baird, (not reported), a reduction of a settlement was raised and executed against the defender, but the induciæ were not expired, when an application was made to the Court, on the part of the pursuers, by petition, on 8th January 1799, to allow one of the instrumentary witnesses to be examined, a certificate being produced of his bad health. The deposition was to lie in retentis. The defenders, on the 25th, likewise presented a petition, acquiescing in the above request, and craving the same privilege for themselves as to the examination of another witness. The desire of both petitions was granted, 29th January 1799. (See Appendix, Part. II.)

No person appearing to object, the Lords allowed the examination to take place, to be sealed up, and transmitted to the clerk of Court, to lie there till opened by the authority of the Court.

For, the Petitioners, Gillies. Agent, James Young. Clerk, Home. Fac. Coll. No. 18. p. 36.