Subject_1 MEMBER of PARLIAMENT. Subject_2 DIVISION VI.
Summary Complaint to the Court of Session.
Subject_3 SECT. IV.
Whether the Court of Session may admit Evidence not laid before the Freeholders.
Captain James Stewart v. Alexander Robertson, Writer to the Signet
Date: 19 December 1767 Case No. No 258.
In reviewing the judgment of freeholders, the Court of Session cannot receive evidence which was not produced to the freeholders.
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At Michaelmas Head Court 1767, Captain James Stewart claimed to be enrolled as a freeholder in the county of Forfar, upon the lands of Nevay; and he produced a certificate from two Commissioners of Supply of that county, bearing, that these lands stood valued in the cess-books at L. 800 Scots.
It was objected by Mr Robertson, “That the certificate produced does not instruct the valued rent of the lands claimed upon; that certificate is only evidence, that the lands which belonged to the Laird of Nevay, in the parish of Nevay, are valued in the roll 1683, at L. 800 Scots; but there is no evidence produced to the freeholders, that these are the lands claimed upon.”
It was answered for the claimant; That the certificate and old cess-books produced, instructed, that the lands claimed on were the lands which formerly belonged to the Laird of Nevay; and it was said, that the fact was notoriously known in the country.
The freeholders refused to enroll Captain Stewart, who complained to the Court of Session; and, along with his petition and complaint, he produced a connected progress, which proved, that the lands he claimed upon were those which had formerly belonged to the Laird of Nevay, and stood in the valuation-roll and cess-books at L. 800 Scots.
It was answered, in support of the objection, That Captain Stewart had not produced to the freeholders evidence sufficient to satisfy any Court, that the lands to which he had right were the lands entitled to the valuation he claimed; and that, although he produced to the Court of Session sufficient evidence to instruct that fact, it could not be received; as the only question under the consideration of the Court was, Whether the freeholders did right or wrong in refusing to sustain the complainer's claim upon the evidence before them? That, if the freeholders had judged properly upon the evidence produced to them, their judgment could not be overturned in consequence of any new or additional proof, which had never been under their consideration; and therefore the writings produced along with Captain Stewart's complaint could not be received.
“The Lords, having heard this petition and complaint, with the answers thereto, and writs produced, find, That the freeholders did right in refusing to enrol the petitioner at last Michaelmas; and therefore dismiss this complaint,” &c.
Captain Stewart gave in a very full petition against this interlocutor, which, was refused without answers.
For Captain Stewart, M'Queen, Ilay Campbell, &c.For Mr Robertson, Lockhart, Rae, Alex. Elphinstone, &c.
Fol. Dic. v. 3. p. 435. Fac. Col. No 70. p. 123.
