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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cameron v. Woolfson [1918] ScotLR 233 (25 January 1918) URL: http://www.bailii.org/scot/cases/ScotCS/1918/55SLR0233.html Cite as: [1918] SLR 233, [1918] ScotLR 233 |
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Page: 233↓
[
In an action of damages the evidence of one of the witnesses for the pursuer was taken on commission, to lie in retentis. The report of the commission was opened prior to the proof, and both parties had an opportunity of being acquainted with its contents. The pursuer closed his case without having made the evidence taken on commission a part of his case. Counsel for the defender
Page: 234↓
at the hearing objected to any reference to that evidence. No motion to have the evidence made part of the proof was made, but the Lord Ordinary considering the matter in his discretion referred to it and granted decree. The defender reclaimed. In the Inner House counsel for the pursuer moved that the evidence be admitted. Held that the admission of the evidence was a matter for the discretion of the Court, that in the circumstances it should be admitted, but that the pursuer was only entitled to one-half of the expenses of the reclaiming note.
Angus Murray Cameron, 45 Abbotsford Place, Glasgow, pursuer, brought an action against Philip Woolfson, wholesale jeweller, 165 Trongate, Glasgow, defender, whereby he sought to recover the sum of £500 as damages in respect of injuries sustained through having been knocked down by a motor van belonging to the defender, and at the time of the accident driven by a chauffeur in the defender's employment.
The evidence of one of the pursuer's witnesses, who was at the time of the proof engaged on military service abroad, was taken on commission by a military officer, to lie
in retentis. Prior to the proof the report had been opened, both parties had been given an opportunity of becoming acquainted with its contents, and it had been returned to process. It was not, however, made a part of the pursuer's case before his counsel closed it. At the subsequent hearing the defender's counsel objected to pursuer's counsel referring to the evidence taken on commission, on the ground that such reference would be prejudicial to his case if made after the case for the defender had been closed. Although no motion was made that the evidence in question be admitted, the Lord Ordinary (
The Lord Ordinary having granted decree for £100 with expenses, the defender reclaimed, arguing that the evidence taken on commission had neither been put in nor had the Lord Ordinary been moved to admit it, and accordingly that he was not entitled to read it or take it into any consideration whatever.
The pursuer argued that the Court had in its discretion power to admit the evidence taken on commission even after the pursuer's case had been closed, and referred to Lowenfeld v. Howat, (1891) 19 R. 128, 29 S.L.R. 119.
The Court, without delivering opinions on this part of the case, allowed the evidence to be admitted, and adhered to the judgment of the Lord Ordinary.
Counsel moved that no expenses of the reclaiming note be allowed to or by either party, on the ground that the defender might not have reclaimed had he known that the evidence in question would be admitted.
The Court found the pursuer entitled to one-half of the expenses of the reclaiming note.
Counsel for Defender— Christie— E. O. Inglis. Agents— Manson & Turner Mac-Farlane, W.S.
Counsel for Pursuer— Morton— Macgregor Mitchell. Agent— W. T. Forrester, Solicitor.
