Scottish Court of Session Decisions

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Cite as: [1835] CA 13_1042

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SCOTTISH_Shaw_Court_of_Session

Page: 1042↓

Gifford

v.

Gifford No. 321.

Court of Session

2d Division

July 4 1835

Ld. Cockburn., Loud Justice-Clerk, Lord Glenlee, Lord Meadowbank, Lord Medwyn

Arthur Gifford and Commissioner, Pursuers.— Rutherfurd— G. G. Bell. Arthur Gifford of Busta. Defender—. D. F, Hope— G. Napier.

Subject_Service—Process—Proof.—

In a reduction of a service in a competition of brieves, upon the allegation that the verdict was contrary to evidence, and that the pursuer was truly the heir of the deceased, the Court refused, in hoc statu, to allow new evidence to be adduced.

In 1832, the pursuer then resident in Canada, sued out by his commissioner in this country, a brief from Chancery, with the view of obtaining himself served heir to the deceased Thomas Gifford of Busta, in Shetland. ¹ The defender having taken out a competing brief, both brieves came to be tried under an advocation before Lord Moncreiff and a professional jury. Both parties had obtained a general diligence for recovery of writings, and a commission for the examination of old and infirm witnesses, and evidence, as well written as parole, was adduced at great length on the trial, which lasted nine days. The jury, by a majority, returned a verdict serving the defender. The pursuer thereafter raised the present action of reduction of the service, on the grounds, first, that the verdict was erroneous, and contrary to the evidence; second, that the pursuer was truly the heir of the deceased, which he nlleged was sufficiently instructed by the evidence already led, or at least would be instructed by that evidence and additional evidence, which he tendered.

Upon a motion by the pursuer, after the record was made up, to be allowed to adduce new evidence at once and independently of the import of the proof already taken, the Lord Ordinary reported the cause, and issued the subjoined note. ^*

_________________ Footnote _________________

¹ See ante, XII. 421.

^* “If the Lord Ordinary had disposed of this case himself, he would, in all probability, have considered the motion for additional evidence as he would a motion for a new trial, and would not have acceded to it at once, or until he had been satisfied that the verdict could not be maintained upon the evidence on which it rests. It surely deserves great consideration whether such a verdict—in a competition—before a fair jury—directed by a supreme judge—is to be so little regarded as that new evidence is to be let in against it, and the whole case thrown loose again, as a matter of course, at the pleasure of either party; especially, if it be the fact (as is sometimes said, though not without strong contradiction), that the case of Anderson, 13th June, 1834, was Intended to establish that such new evidence must always be taken on commission, and can never be submitted to another jury,

“But, though the Lord Ordinary states these views as explanatory of his reason for reporting, he must add, that this point was not regularly debated before him.”

At the advising, the pursuer maintained—

That he was entitled to be let into new evidence, as there was no difference between the present proceeding and the reduction of a decree of an Inferior Court proceeding upon evidence, in which case the party had a right to demand an additional proof.

That the trial by inquest was an anomalous proceeding, and the verdict stood in a different position, in respect to review, from the verdict on an ordinary trial by jury; in all reductions of services reported, the pursuer had been allowed to lead additional evidence. ¹

That he was not precluded from offering further evidence, by his having appeared in the process of competition.

That the statute 1 and 2 Geo. IV., c. 38, sec. 11, merely changed the form of procedure, and did not deprive the Court of their power of reviewing the verdicts of inquests.

The defender maintained—

That the 1 and 2 Geo. IV., c. 38, implied that there should be no review of inquests taken before the Lord Ordinary.

That new proof had only been allowed in cases where there was no competing brief.

That if the pursuer is right in his first plea in law, he cannot ask to be allowed to tender additional evidence; and the Court, before admitting such evidence, must find that the verdict was bad.

Loud Justice-Clerk.—I do not think we can listen to the pursuer's demand in hoc statu, so long as he adheres to his first plea in law. There was here a competition of brieves, where both parties had full opportunities of loading proof. There is no allegation of informalities having occurred. The verdict was solemnly returned, and we cannot neglect it. But I reserve my opinion as to the competency of leading new evidence when the question is brought forward in a proper shape. If it should be allowed, it will be a nice question in what manner this additional evidence is to be let in. In regard to the case of Anderson, June 13, 1834 (ante, XII. 729), where there was a most important note by Lord Moncreiff appended to an interlocutor, which was approved by the Court, we thought in that particular case that the additional proof should be led by commission.

Lord Glenlee.—The statute 1 and 2 Geo. IV., c. 38, made no change except as to the form of procedure in inquests. I always understood that a competition of brieves was the form for trying the question of right as to the succession of an heir to an estate, and that the verdict of the Jury was the most solemn res judicatæ. Can we, without looking at what was done, de plano allow a proof at large? This would be inconsistent with the doctrine of res judicata, when the case has been in foro. There may be cases, however, where new evidence should be allowed. If the pursuer offer to instruct that the certificate of marriage which was

_________________ Footnote _________________

¹ Cochran v. Ramsay, December 17,1824 (ante, III, 411); Galbraith v. Galbroith, June 20, 1826 (ante, IV. 734); and Note of Lord Ordinary in a previous stage of the present cause, ante, XII 424.

before the jury is false and forged; if he say that he has important matter, which is really and truly noviter veniens ad notitiam,—I do not say that in such case he ought to be excluded from farther proof. But, in hoc statu, the motion of the pursuer cannot possibly be listened to.

Lord Meadowbank.—I entirely concur.

Lord Medwyn.—I do not much differ. The difficulty I have is, that we should exclude new evidence before we see what is the evidence proposed to be adduced. In respect to the review of verdicts upon inquests, no change was made cither by the act referred to or by the introduction of Jury trial.

The Court accordingly refused the application of the pursuer in hoc statu, and remitted to the Lord Ordinary to hear parties on the merits.

Solicitors: Thomas Ranken, S.S.C.—G. and W. Napier, W.S.—Agents.

SS 13 SS 1042 1835