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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Somerville v. Thomson [1896] ScotLR 33_411 (6 March 1896) URL: http://www.bailii.org/scot/cases/ScotCS/1896/33SLR0411.html Cite as: [1896] SLR 33_411, [1896] ScotLR 33_411 |
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Page: 411↓
In an action of damages for breach of promise of marriage the pursuer moved for a diligence to recover (1) the business and bank books of the defender, and (2) the books of the banks of which the defender was a customer.
The Court refused the diligence, there being practically no dispute as to the defender's financial position.
Opinion (per Lord Young) that the pursuer of an action of damages for breach of promise of marriage is not entitled to a diligence to disclose the defender's financial position; contra (per Lord Trayner) that such a diligence would be competent if the question of the defender's financial position was material to the case, and was in dispute.
In an action for damages for breach of promise of marriage the pursuer averred that the defender carried on business as a livery stable keeper, that in this business he employed three horses and seven or eight machines, and that he also owned a farm, and was possessed of other means of considerable extent.
The defender in his defences explained that his business consisted of a small posting establishment employing two horses, and his farm a croft of £20 rent per annum.
The pursuer, after the issue had been adjusted by Lord Kincairney, Ordinary, gave notice of trial for the sittings. In anticipation of the trial she moved the Court for a diligence to recover (1) the defender's bank account books with the Caledonian Bank and the Commercial Bank, Limited, and any deposit-receipts which he held for money deposited in either of these banks or any other bank; (2) the journals, day-books, ledgers, and other business books of the defender relating to his posting business and farm; and (3) the bank books of the two banks mentioned, or excerpts therefrom, in terms of the Bankers Evidence Act 1879, showing the state of the defender's account between 1st January 1890 and the date of executing the commission.
The motion was opposed by the defender, who argued—(1) That the pursuer's case did not require that a diligence of this kind should be granted; and (2) that in an action of this kind such a diligence could not be competently granted— A v. B, July 14, 1875, 12 S.L.R. 621; Craig v. North British Railway Company, July 3, 1888, 15 R. 808; British Publishing Company, Limited v. Hedderwick & Sons, July 14, 1892, 19 R. 1008; Johnston v. Caledonian Railway Company, December 22, 1892, 20 R. 222.
Page: 412↓
Lord Justice-Clerk—I think that we ought not to grant the diligence asked for.
The Court refused the motion for a diligence.
Counsel for the Pursuer— A. M. Anderson. Agent— John Veitch, Solicitor.
Counsel for the Defender— Maclennan. Agent— Alex. Ross, S.S.C.
