Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Banffshire, at the instance of Mr Steuart of Auchlunkart, in an action by one of his tenants, Strachan, against him. In the course of said action in the Sheriff-court, a commission was granted to examine Mr Stewart as a haver, for the purpose of recovering certain documents upon which the pursuer relied to prove his case. It appeared from medical certificates that Mr Steuart was in such a state of health “that a judicial examination would be very injurious to his mental health,” and that it “ought to be conducted with great care,” and “should not be permitted to extend beyond one, or, at the utmost, two hours.”

The commissioner reported as follows:—“It is perhaps proper that in reporting the discharge of the duty committed to him by the Sheriff, the commissioner should say that the deposition before—written was emitted and taken down under such circumstances as to render it not to be wondered at if the deposition should be found to exhibit errors in point of grammar or connection, or contain things which would not have appeared in any other case, the marvel being that it was found possible to obtain or take down any deposition at all. This will be more readily believed when it is stated that Mr Steuart, the deponent, refused to give to either the commissioner or clerk a chair or seat of any kind, unless the commissioner would expressly order him to do so, the consequence being that they were both obliged to stand during the whole of the three hours in which they were engaged in the deposition, the clerk having to write as he best could at a low table, in a posture of much bodily discomfort, and even pain. Added to this, Mr Steuart, though he repeatedly and distinctly said that he had no conscientious scruples to take an oath, for some time refused or declined to be sworn, and, both before and after he was sworn, poured out such an incessant flood of words as to render it exceedingly difficult to follow him, the difficulty being greatly increased by the fact that these words were for the most part entirely irrelevant to the question at issue, and accompanied by, or rather composed of, abuse of the Sheriff and Sheriff-Substitute, commissioner and clerk, his opponent, and his agents, and every one connected, or supposed to be connected, with them in any way. And though the commissioner did his best to put into words all that fell from Mr Steuart that he considered at all pertinent to the inquiry in progress, he is sensible that this was done not at all as he could have wished; and he may add that while he took down much that he considered irrelevant to endeavour to please Mr Steuart and keep him quiet, if he had attempted to take down all that Mr Steuart actually did say, and insisted with threats should be minuted, three days instead of three hours would not have sufficed for the task, and if it had been accomplished, the result would have been a mass of unintelligible confusion, altogether unfit to be presented to any court of justice. When the deposition was concluded, Mr Steuart declined to hear it read, and refused to subscribe it unless the commissioner would say that he was compelled to do so; and the commissioner having declined to say more than that Mr Steuart could subscribe or not as he pleased, and could not be compelled to do so, Mr Steuart did not subscribe it, and it was thereupon subscribed by the commissioner and clerk in his presence.”

Thereafter the Sheriff-Substitute, holding that the deposition of the defender had been evasive, ordained him to produce the documents called for, under certification that if he did not do so decree would go out in terms of the conclusions of the libel. He remarks in his note—“In the report of commission, No. 65 of process, the defender is interrogated ‘if he has any documents falling under the first head of specification’ (p. 6). The answer to that question is given on p. 11,—‘depones, That he has no other paper to produce except the one he has already referred to, and which he produces, and the same is now signed by the deponent, commissioner, and clerk as relative hereto of this date.’ That document is No. 66 of process, and has nothing to do with the question put. The answer being evasive, the question is again put by the pursuer's procurator—‘depones, That he considers the answer already given an answer to the question put’ (p. 12). This is not an answer to the question put. ‘Interrogated, Had you ever any document or documents falling under the first head of the specification? depones, That is a legal question which must be decided by the House of Lords, but that in his opinion he never had any.’ This again is no answer to the question put.”

The defender having failed to produce the documents, the Sheriff granted decree in terms of the libel.

The Sheriff-Depute ( Bell) adhered on appeal.

Mr Steuart appealed to the Court of Session.

R. V. Campbell ( Dean of Faculty with him), for him, quoted the following cases in support of his argument— National Exchange Company v. Drew & Dick, 19th May 1858, 20 D. 837; Caledonian Railway Company v. Orr, 17 D. 812; Stewart v. Grant, 5 Macph. 736.

Asher and Moncrieff, in answer, quoted—Shand Pract., 1, 369; Napier v. Douglas, 4 S. 325.