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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Aitchison & Sons, Ltd v. M'Ewan [1903] ScotLR 40_249 (08 January 1903) URL: http://www.bailii.org/scot/cases/ScotCS/1903/40SLR0249.html Cite as: [1903] SLR 40_249, [1903] ScotLR 40_249 |
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Page: 249↓
[
A company raised an action of damages against certain of its shareholders for alleged slanders contained in a petition for judicial liquidation of the company, in which the defenders had averred that the company “was hopelessly insolvent.” The pursuers obtained an issue. There was no counter issue of veritas. The defenders moved for a diligence for recovery of, inter alia, the books of the pursuers. The Court granted the diligence, on the ground that the books might be material in respect to the question of the amount of damages, but intimated that they were not to be used for any other purpose.
An action was raised by Aitchison & Sons, Limited, Queen Street, Edinburgh, against John M'Ewan and others, shareholders of the company, concluding for payment of £5000 as damages.
Page: 250↓
The pursuers averred that the defenders had wrongfully and without any ground presented apetition in March 1902 for the judicial liquidation of the pursuers, in which they had slandered the pursuers by stating that they were “hopelessly insolvent,” and that “their business in Queen Street is also unsuccessful and has earned no profit.”
They further averred that their business had been greatly injured by these slanderous statements.
The pursuers were granted two issues, of which the second was “Whether the statements,” quoted above, “falsely, calumniously, and maliciously state that the pursuers were insolvent,” to their damage.
The defenders did not ask for a counter issue of veritas.
The defenders moved for a diligence to recover, inter alia, “The whole business books of the pursuers, including cash books, cash ledgers, sales books, bank pass books, letter books, and other books for the period from 12th May 1894 to 7th July 1902, that excerpts may be taken therefrom at the sight of the Commissioner of all entries therein relating to the matters referred to in the record.”
The pursuers opposed the motion, on the the ground that the books would not be relevant to the matter covered by their issue, and that the defenders had taken no counter issue of veritas.
The defenders maintained that, as shareholders of the company, they were entitled to recover the books for any purpose, and that in arty event they might use them with reference to the amount of damages.
The Court pronounced this interlocutor—
“The Lords grant diligence against havers at the instance of the defenders for the recovery of the documents in their specification No. 31 of process (as amended at the Bar); grant commission to Mr W. Æ. Mackintosh, advocate, to take the oaths and examinations of the havers and receive their exhibits and productions, to be reported quam primum.”
Counsel for Pursuers— W. Hunter— Wilton. Agent— W. Marshall Henderson, S.S.C.
Counsel for Defenders— Wilson, K.C.— T. B. Morison. Agents— Adamson, Gulland, & Stuart, S.S.C.
