Scottish Court of Session Decisions

This was a petition for warrant for the transmission of certain deeds, now in the custody of the Lord Clerk Register, to England in order to their being used in a suit which is shortly to be heard before Vice-Chancellor Kindersley. The petition prayed the Court to “grant warrant to and authorise the Lord Clerk Register and Deputy-Keeper of the Records to proceed to London with the deeds or instruments for the purpose of exibiting the same to the Court of Chancery in England on all necessary occasions within six months from the date of your Lordship's warrant, and thereafter to return said deeds to the record.” There was produced an affidavit by the petitioner's counsel in England to the effect that the deeds were in his judgment material evidence for the petitioner in the English suit; and that according to the law of evidence in England, and the practice of the High Court of Chancery, official or other copies of the said deeds or instruments will not be received as evidence, but the originals thereof must be produced.

Some years ago a warrant similar to that now asked was granted by the Court in order that a deed might be produced at the trial in the Court of Probate of the case of Shedden v. Patrick; and in that case documents produced before that Court by the Deputy-Keeper of the Records in Scotland were taken from that officer and retained in England for a considerable period, an undertaking by the Court for their return to the Record, even at the close of the trial, being at the same time expressly declined. Accordingly, before disposing of the present petition, the Court requested the Lord Clerk Register to make a communication to the Vice-Chancellor with the view of obtaining a distinct assurance that in the event of the petition being granted, the Court's custody of the documents will in no degree be infringed on. The Vice-Chancellor made a reply, in which he said—“I have no hesitation in declaring my individual opinion to be, that when the Court of Session allows its own records to be brought to England in the custody of its own officer, for the purpose of their being produced as evidence before an English court of justice, no circumstances could justify the English court in taking them away from such officer and retaining them without the consent of the Court of Session; and as at present advised, I should act upon that opinion, if such a question came before me. Beyond thus stating my own opinion, I apprehend it is impossible for me to give to the Court of Session the desired assurance, for not only is it within the limits of possibility that I might be convinced by other precedents that my present opinion is erroneous (though I do not think any such precedent could be found), but it is to be borne in mind that any decision of mine is subject to appeal, and I cannot of course answer for the views of the Appellate Court.”

The Court to-day, on considering the affidavit and the Vice-Chancellor's letter, refused the petition.