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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Anderson v. Morrison [1905] ScotLR 42_428 (11 March 1905)
URL: http://www.bailii.org/scot/cases/ScotCS/1905/42SLR0428.html
Cite as: [1905] SLR 42_428, [1905] ScotLR 42_428

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SCOTTISH_SLR_Court_of_Session

Page: 428↓

Court of Session Inner House First Division.

Saturday, March 11 1905.

42 SLR 428

Anderson

v.

Morrison

Subject_1Process
Subject_2Proof
Subject_3Jury Trial
Subject_4Commission to Take Evidence — Action of Damages for Slander — Examination of Pursuer on Commission.
Facts:

An action of damages for slanderous statements alleged to have been made in June 1903 was put down for jury trial at the Summer Sittings of 1904. The trial was postponed at the instance of the defender, who opposed a motion to have the pursuer's evidence taken on commission. The cause being put down for jury trial at the Spring Sittings of 1905, the pursuer again moved that his evidence should be taken on commission, on the ground that, as certified by a doctor, he would not be able to attend the Court for at least a year, and his evidence was essential. The defender again opposed the motion, and asked that the trial should be postponed. The Court granted the pursuer's motion.

Headnote:

On 14th July 1903 James Anderson, carpenter and contractor, Eastgate, Inverness, raised an action against Donald Morrison, tea merchant and dealer, Balblair Road, Nairn, in which he sought to recover £500 as damages for slander. His averments were to the effect that in Messrs Macdonald, Fraser, & Company's mart at Inverness on the 16th June 1903, in the hearing of certain witnesses, the defender, after putting out his tongue at the pursuer, had said to him—“You are a damned fraud, a cheat, and a swindler, and your father before you, and the whole lot of you,” and had accused the pursuer of having used in executing certain contracts only two-fifths of the nails and one-half of the screw-nails which an honest contractor would have used.

Issues were adjusted, and the cause was put down for trial at the Summer Sittings of 1904. In July 1904, prior to the rising of the Court, counsel moved on behalf of the pursuer that his evidence should be taken on commission as the trial could not proceed without it, and the pursuer was unable to attend owing to a nervous breakdown, the effect of meningitis. A doctor's certificate was produced. The defender opposed this motion on the ground that the pursuer's personal attendance was necessary, and moved that the trial should be postponed. The latter motion was granted.

The cause was put down for trial at the Spring Sittings of 1905, when the motion was again made on behalf of the pursuer that his evidence should be taken on commission. His doctor certified that he could not attend the trial, and would not be able to do so for at least a year, and his counsel intimated that his evidence was essential. The defender again opposed the motion on the ground that for his case it was necessary that the pursuer should attend so that he should be able to cross-examine him before the jury.

 Judgment:

Lord President—There is a peculiar situation disclosed here, and I think it is clearly a case to allow the motion; indeed, to do otherwise would be tantamount to saying that the pursuer should have no action for the injury alleged to have been done him simply because he has never since been in a sufficiently good state of health to appear in the witness-box. It seems to me that any prejudice arising from his not being here will have to be borne by himself. It might be very desirable to postpone the trial so as to have the pursuer in the witness-box if there were some prospect of his being able to attend; but seeing the date when the act complained of was done, and that the pursuer has been ill ever since, it does not seem to me that there should be any further delay.

Lord Justice-Clerk—I concur.

Lord Kinnear—I quite agree. I take it to be practically conceded that the pursuer cannot be compelled to appear for examination at the trial, for the defender's motion is, not that the action should be dismissed, but only that the trial should be postponed. I do not think that a proper course, considering the length of time for which the action has been already in Court, and if it is not to be thrown out at once, which is not suggested, the only alternative is that the trial should be allowed to proceed, leaving the pursuer's evidence, if he desires to tender himself as a witness, to be

Page: 429↓

taken on commission. The prejudice which may arise from proceeding at a time when the pursuer cannot go into the witness-box will fall upon himself rather than upon his opponent.

Lord Stormonth Darling—I concur.

Lord Adam and Lord M'Laren were absent.

The Court granted the pursuer's motion.

 Counsel:

Counsel for the Pursuer— Munro. Agents— Steedman, Ramage, & Bruce, W.S.

Counsel for the Defender— W.Æ. Mackintosh. Agent— Arch. Menzies. S.S.C.

 1905

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URL: http://www.bailii.org/scot/cases/ScotCS/1905/42SLR0428.html