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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Samson & Co. v. Hough and Others [1886] ScotLR 23_828 (13 July 1886) URL: http://www.bailii.org/scot/cases/ScotCS/1886/23SLR0828.html Cite as: [1886] ScotLR 23_828, [1886] SLR 23_828 |
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Page: 828↓
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Where the pursuer of an action is resident abroad it is a question of circumstances in each case whether, if a witness for himself, he must be personally present at the proof, or whether his examination may be taken on commission.
William Samson & Co., shipping agents, carrying on business in Uruguay and Buenos Ayres, raised an action against Edward Jordan Hough of North Shields, and others, the registered owners of the steamship “William Burkitt” of London, concluding for £799, the sum contained in a bill of exchange granted, as pursuers alleged, in their favour by the master for the necessary disbursements of the ship, and accepted by the managing owners.
On 2nd July 1886 the Lord Ordinary on the motion of the pursuers allowed William Samson, residing in Buenos Ayres, a partner of the pursuers' firm, to be examined as a witness for them by commission on the subject-matter of the closed record, and granted commission to the Consul at Buenos Ayres to take the examination on adjusted interrogatories.
Against this interlocutor the defenders reclaimed (by leave).
Argued for them—The pursuer of an action could not competently have himself examined by commission; he was bound to come to this country and submit himself to cross-examination; the rule of practice in such cases was settled by Sofio v. Gillespie, March 5, 1867, 39 Jurist, 268.
Replied for respondent—There was no hard and fast rule of practice as to whether or not a pursuer resident abroad was bound to come to this country for examination. The question was one of circumstances, and each case fell to be decided on its own merits. Here the distance of the pursuer's place of business from this country was an important element why he should not be brought over, and it was eminently a case for his examination on commission.
Authorities— Donnan v. Paterson, July 14, 1859, 21 D. 1301; Hansen v. Donaldson, Nov. 27, 1873, 1 R. 237; Mackay's Practice, 80.
At advising—
It therefore comes to be a question of circumstances in each case whether or not the pursuer must present himself for examination, and in the present case the distance of Buenos Ayres from this country, and the time which would be occupied in the voyage here and back, is an element of no small importance, taken along with the circumstance that the present dispute arises out of an ordinary mercantile transaction containing no specialty whatever.
The Court refused the reclaiming-note.
Counsel for Pursuers— Dickson. Agents— Boyd, Jameson, & Kelly, W.S.
Counsel for Defenders— Thorburn. Agent— Andrew Wallace, Solicitor.
