Scottish Court of Session Decisions

After the evidence of the witnesses for the pursuer in an action in the Sheriff Court at Aberdeen, at the instance of John Yates, labourer there, had been taken down in shorthand in the usual way, the Sheriff-Substitute ( Hamilton Grierson) declared the proof closed and appointed the parties to debate. The notes of the shorthand writer who had taken down part of the evidence were destroyed by the children in the house where he resided before he had extended them, and the pursuer applied to the Sheriff-Substitute to allow the witnesses whose evidence had been lost to be re-examined. The Sheriff-Substitute refused the application, on the ground that there were no provisions in the statute—the Evidence Further Amendment (Scotland) Act 1874 (37 and 38 Vict. c. 64)—authorising him to take the evidence a second time, and that he had no power to act without a remit from the Court of Session. The. pursuer thereupon presented a petition to the Court of Session to grant, in the exercise of its nobile officium, a remit to the Sheriff-Substitute to take the evidence of new. The defender in the action opposed the granting of the petition, on the ground that in the circumstances of the case it was unfair to him to have the witnesses re-examined, and unnecessary, as he was willing that the shorthand notes of a newspaper reporter who was present should be regarded as giving the evidence correctly.

At advising—