Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR ALEXANDER GIBSON, OF DURIE.

Hamilton of Sheills
v.
The Tenants of Milnhouse

Date: 31 January 1633

Click here to view a pdf copy of this documet : PDF Copy

A decreet of removing given against the tenants, in foro contradictorio, in November 1632, being suspended upon a reason of a tack set to the defender's father for terms yet to run, to whom they were apparent heirs; which they proponed as noviter veniens ad notitiam, and offered to make faith thereon, and qualified the cause of their probable ignorance thereof, viz. that one of the decerned tenants, being one of the daughters and apparent heirs of the tacksman, who was in Ireland the time of the sentence, and yet is there, had and hath the tack foresaid in her keeping; whereupon one of the parties present made faith, and sware the verity thereof, and that she never knew the same but since the sentence;—the Lords, before they would discuss whether this reason should be received or not, notwithstanding that the party contended that it ought not to be received, in respect of the said sentence given against them compearing, and that he alleged res judicatæ non debent retractari prætextu instrumentorum noviter repertorum; and also (notwithstanding that the tack was not instantly produced, to verify the reason, as the party alleged ought to be done in the case of instruments new come to knowledge,) they assigned a day to the suspender to produce these tacks, and to recover the same out of the parties' hands in Ireland; and reserved then to the party, after sight of the tacks, to oppone what he might against the same, either why it should not be received then, or why it proved not the reason; to which time all further proceeding was superseded, sed cum onere expensarum.

Act. Nicolson and Gilmor. Alt. Mowat. Scot, Clerk.

Vid. 9th June 1624, L. Touch; and 20th January 1631, E. Galloway.

Page 667.