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 PROBATION.

John Wilson
v.
Archibald M'Lean

Date: 10 August 1776

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In prosecutions where forgery is alleged, proof ex comparatione literarum is frequently offered, and is, of all others, the most delicate. In the times before the Revolution, in several political trials, it was highly complained of: it is reprobated in the practice of England: in France, though it is allowed, yet the decision thereof is left to certain stated officers of Court skilled in comparisons of that kind. In short, it is of a very delicate nature.—So argued in the cause, John Wilson, ironmonger in Glasgow, against Archibald M'Lean, merchant in Laggan Ulva, in the Island of Mull. Debated in presence 25th July 1776.

This was one of the most extraordinary causes pleaded in my time, on account of the contrariety of evidence. The Lords seemed inclined to wish for further evidence; so said the parties also. After a hearing in presence for six days, 26th July 1776, the Lords pronounced the following interlocutor:— “The Lords, having heard parties' procurators in presence, on this cause, and on the proof already adduced hinc inde,—before advising, appoint both pursuer and defender to give in pointed and special condescendences of all further facts and circumstances material to the issue, which either party now offer to prove, or of which they desire and offer to bring further proof, and also of the names of the witnesses, or other mode of proof or investigation by which they offer to prove them; and particularly of the names of any of the witnesses already adduced, of whom they desire a reëxamination; the said condescendences to be given in to the clerk of process on Tuesday next at ten o'clock, so to remain till further order of Court, with certification.”

30th July 1776, the condescendences were given in, and ordered to be printed.

At advising these condescendences, the Lords pronounced this interlocutor: — “Having this day resumed consideration of this cause, and having advised condescendences given in for the pursuer and defender respectively; before answer, allow the pursuer to prove the facts set forth in his condescendence; allow the defender to prove the facts set forth in his condescendence, and allow to both parties a conjunct probation upon the whole; and also of all facts and circumstances which either party may judge material to the issue; and, for this purpose, allow the pursuer to adduce the witnesses mentioned in his condescendence, and in the list subjoined thereto, either for examination or reëxamination, as therein specially mentioned; and also allow the defender to adduce the witnesses mentioned in his condescendence, either for examination or reëxamination, as therein also specially mentioned: And, as to such of the said witnesses who are subject to the jurisdiction of this Court, grant warrant for letters of first and second diligences, at the instance of the parties, hinc inde, for citing them to appear in Court, on the twelfth day of November next, with continuation of days, to be examined on all pertinent interrogatories, either as witnesses or havers, or both, as the Court shall see proper; but, as to such of the witnesses or havers who reside either in Ireland or England, outwith the jurisdiction of this Court, the Lords grant commission to, whom failing by nonattendance, * to, to examine those who reside in Ireland, and that at, any lawful day or days betwixt the 1st day of October and 1st day of November next: and in like manner, as to those who reside in England, grant commission to to examine them, and that at, any lawful day or days, betwixt the said 1st day of October and 1st day of November next: and the Lords recommend to the several judges of England and Ireland, in the place or places where this commission shall be executed, if desired by the parties, or either of them, to issue, ex comitate, the proper compulsitors for bringing said witnesses and havers before the commissioners, in order to their examination: Further, the Lords hereby grant commission to the said, to inspect the custom-house books of Ballicastle, and from them to make excerpts of all entries therein, during the years 1770 and 1771, of any vessel commanded by a John White, under the name of, and, by his subscription, to authenticate said excerpts; and to make such observations thereon, with regard to the former manner of the entries, the places of the books where they are entered, any alleged razures in the entries, or other circumstances whatever, which may appear to them material to the issue. The whole to be reported to the Court on the 12th day of November next.”

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* They were both servants of the Court, so the words nonattendance were unnecessary.