Scottish Court of Session Decisions

In 1834 the Magistrates of Brechin raised an action to prove the tenor of an old act of thirlage relating to the common mills of Brechin. The defenders were Guthrie, Martin and Co., distillers in Brechin, and John Ogilvy, tacksman of the mills of Brechin. Along with the summons there was produced as an adminicle, an ancient copy of the act; which had been recovered, in 1826, out of the hands of John Smith, postmaster in Brechin, when examined as a haver, in virtue of a diligence granted in a cause between the tacksman of the mills and Guthrie, Martin, and Co. The Magistrates, in respect of John Smith's advanced age, obtained a commission to examine him, and keep his deposition in retentis. The interrogation of Smith was commenced by exhibiting the copy act of thirlage, upon which Smith stated that “his memory was by no means so good now as it has been; and, before proceeding farther, with the present deposition, the deponent requests that the deposition emitted by him” as a haver might be read over. This was objected to by the defenders as irregular, and the commissioner reported the objection to the Court.

The subject matter of the action in which Smith's examination as a haver had been taken, was closely connected with the proving of the tenor, both relating to the thirlage of the mills. And it was said that Smith's examination had been irregularly taken, in so far that, in place of being confined within a haver's limits, it had embraced evidence in causa.

Skene, for the defenders, pleaded, that, even if it had been a deposition in the same cause, and the witness was afterwards examined in the Jury Court, such witness, though entitled to have his previous deposition cancelled, was not entitled to have it read over before giving his evidence. Much less was he entitled to insist for this, where the previous deposition was taken in a different cause. The objection was the stronger, because the deposition was a mere examination as a haver; and, if it contained any evidence in causa, the Court would not permit it to be read, even in the action in which it had been taken.

G. G. Bell answered, that the witness had no right to have the previous deposition cancelled, and he was entitled to have it read over prior to this examination as had been repeatedly decided, ¹ and was consistent with practice.