Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 FORM OF PROCESS.

Livingston of Parkhall
v.
York Building Company

Date: 28 November 1776

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In the case, Livingston Mitchell of Parkhall against the York Building Company, concerning the property of the coal of Craigend, a final interlocutor had been pronounced by the Lords, in presence, in July last; against which no reclaiming petition having been presented, the day elapsed In the vacance, however, upon a search of his papers, the petitioner found certain papers, of which he was totally ignorant before, and which he judged material in the cause. He therefore, 23d November 1776, presented a reclaiming petition, founding upon these instrumenta noviter reperta; which he alleged took the case from under the Act of Sederunt. At moving the petition in Court, the Lords put the question to the petitioner, if he was willing, in the first place, to pay all the expenses which the York Building Company had already been put to in the cause? He declined paying the past expense, but said he was willing, if the petition was ordered to be answered, to pay the expense of the answers. The Lords, upon a minute to this effect being prefixed, refused the petition.

It seemed to be their opinion that instrumenta noviter reperta would take a, case from under the Act of Sederunt as to the reclaiming days; but, in this case, as the papers were found in the party’s own possession, they thought it reasonable that, ante omnia, he should reimburse the other party of their expense.