County Council of Fife v Thoms
| Jurisdiction | Scotland |
| Judgment Date | 09 July 1898 |
| Date | 09 July 1898 |
| Docket Number | No. 176. |
| Court | Court of Session |
Ld. Stormonth-Darling, Lord Young.
Proof—Diligence to recover Writs—Letters of living persons—Precognitions—Confidentiality.—
The pursuers in an action for declarator of right of way obtained a diligence to recover letters between the defender or his predecessors in his lands and any member of the public prior to the date of raising the action on the subject of the alleged right of way. Held that the defender was not bound to produce letters written to him in answer to his inquiries after the dispute arose by persons who were alive and might be examined as witnesses, such letters not being competent evidence.
The St Andrews District Committee of the County Council of the county of Fife brought an action against David W. Thoms, of Feddinch and Winthank, for declarator that a public right of way existed in a certain direction across these lands.
An issue for the trial of the cause by jury having been adjusted, a diligence was craved by the pursuers for the recovery of certain documents. The third article of the specification was in the following terms, viz.:—‘All letters, telegrams, memoranda, or other writings passing between the defender or any of his predecessors in the lands of Feddinch and Winthank, or either of them, or any person on behalf of him on the one hand, and any member of the public on the other hand, having reference to any of the matters mentioned on record prior to the date of raising the present action.’
The Lord Ordinary granted the diligence at the instance of both parties.
The defender being called on to produce, under Article 3 above quoted, produced certain documents per inventory, and stated that he had other documents falling under the call which he declined to produce on the ground of confidentiality, they being of the nature of precognition after the question was raised between the parties.
These latter documents were delivered to the Commissioner in a sealed packet. The Commissioner reported to the Court that he had examined the documents, and was of opinion that they fell under the call, but, as requested by the defender, had again sealed them up to await the decision of the Court.
On a motion by the pursuer to open the packet, the defender argued;—The letters in question were all written within six months before the raising of the action. The writers were alive and could be examined as witnesses. The letters were written to the defender in answer to...
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