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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Captain James Stewart v Alexander Robertson. [1767] Hailes 202 (24 December 1767)
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Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 FREEHOLDER.
Subject_3 The Court of Session cannot receive new evidence from a complainer against a judgment of the Freeholders.
Date: Captain James Stewart
v.
Alexander Robertson
24 December 1767 Click here to view a pdf copy of this documet : PDF Copy
[Faculty Collection, IF. 123; Dictionary, 8874.]
Barjarg. We cannot touch the first question, because the House of Peers has found that it is extrajudicial to determine in causa. When there is a preliminary objection, this case is like that of Sir John Gordon.
Kaimes. The freeholders did right in not admitting the complainer without evidence.
Coalston. There is a difficulty here. The practice in the cess-books was, to name the heritor instead of the lands: Is it necessary to require a connected progress to shew what the lands were?
Auchinleck. The proprietor for the lands at the time, pays cess, and this fixes what lands are meant; but here Lord Strathmore's valuation is in cumulo, so that it does not appear to whom the Laird of Nevay's lands belonged. Suppose that no progress were produced, could we take it for granted that the lands of the Laird of Nevay, in 1683, were the Kirktoun, &c.? If we could not, how could the freeholders?
Kennet. A man does not know what objection may be made; he therefore is not bound to come prepared with his whole proof.
Pitfour. There is an enix declaration in the judgment of the House of Peers on Sir John Gordon's case, which points out the rule for us to walk by.
Elliock. New arguments may be brought before this Court, but not new titles. It matters not what lands the Laird of Nevay had: How does the complainer connect with him?
On the 19th December 1767, “The Lords found that the freeholders did right in refusing to enrol Captain Stewart; and therefore dismissed the complaint, and found him liable in the penalty and expenses.”
On the 24th December, they adhered.
Act. Ilay Campbell. Alt. A. Elphingston.
The electronic version of the text was provided by the Scottish Council of Law Reporting