Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 MEMBER OF PARLIAMENT.
Subject_3 Competency of producing new evidence in the Court of Session, to support a claimant's title.

Alexander Gordon of Whiteby
v.
General James Abercrombie and Others

Date: 14 July 1773

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[Faculty Collection, VI. 165; Dictionary, 8876.]

Hailes. My difficulty as to the receiving of new evidence is upon the judgment in the case of Captain Stewart, respecting the Laird of Wevoy's lands. There the Court was much moved by a judgment of the House of Peers in the case Sir John Gordon; and it was said that that judgment showed the enix will of the House of Peers, that the evidence should originate before the court of freeholders, and that new arguments might be produced before the court of review, but not new evidence.

Auchinleck. All that is incumbent on a claimant is to produce charter, sasine, valuation, or evidence of old extent. If any objection is made, he may support his claim by a reply, and then produce evidence, which only the objection made necessary.

Monboddo. Evidence in support of evidence, before the freeholders, may be produced.

Alemore. In matters of this kind, a distinction is to be made. If the claimant produce valuation, &c., he complies with the Act; but, if there is any ambiguity, he ought to come prepared to clear up the ambiguity, because he might have foreseen the objection thence arising.

[This rule seems a good one; but I should think that, in the present case, it goes to the inadmissibility of the new evidence, for the ambiguity in the titles produced was obvious.]

President. I had once formed to myself a system of political law, but it has been shaken partly by the judgments of this Court, partly by the judgments of the House of Peers. I still wish to recur to my old system. I think that the doctrine of the reclaiming petition would destroy the whole spirit of the law. We are not to judge prima instantia. Grounds of claim must be produced before the freeholders; but still opportunity must be given to answer objections, especially as absent freeholders may object. I also doubt of the competency, after decreet had gone out, upon the proof before answer being allowed.

On the 14th July 1773, the Lords found the production of new evidence competent.

Act. Ilay Campbell, &c. Alt. Cosmo Gordon, &c.