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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Fyfe v Miller [1835] CA 13_809 (21 May 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0809.html Cite as: [1835] CA 13_809 |
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Page: 809↓
Thomas H. Miller
Subject_Process—Record.—
Irregular to set forth on the record extrajudicial communings and correspondence which had taken place with a view to a settlement of the action, before it was called in Court; and party ordered to withdraw his condescendence, and pay certain modified expenses.
Archibald Fyfe, as trust assignee of Steele and Baxter, confectioners in Edinburgh, raised action against Thomas H. Miller, Esq., advocate, for payment of an alleged account. The defender consigned the amount which he admitted to be due, and a record was prepared quoad ultra. The pursuer inserted in his condescendence a detailed statement of extrajudicial communings and correspondence which had taken place, with a view to a settlement, before the action was called in Court. This was done for the purpose of founding on them as admissions of the debt claimed. The defender objected, that it was irregular even to refer to such communings, and still more so, to insert them in the record; and he craved an order for deleting them.
The Lord Ordinary “appointed the revised condescendence for the pursuer to be withdrawn from process, and a new revised condescendence lodged, keeping out those articles in reference to an extrajudicial settlement of this cause, and that within eight days; and the defender to lodge revised answers thereto within eight days thereafter; farther, found the pursuer liable to the defender in the expense of two appearances, and modified the same to two guineas.”
Fyfe reclaimed. But,
The Court, by a majority, adhered.
Solicitors: J. Johnson— J. Ronald.—Agents.
