Scottish Court of Session Decisions

The pursuers raised the present action of reduction of two services obtained by the defender—the one as nearest lawful heir in general, and the other as nearest lawful heir in special to the first Earl of Stirling, and of certain deeds following thereon, on the grounds, inter alia, that the defender was not truly heir to the deceased, either in general or in special, and that the deeds following upon the services were without legal warrant. In the services there had been no competing brieves. The defender had supported his claim by the production of certain documents to the jury, and he now offered to establish his propinquity, if necessary, by additional evidence. Upon a motion by each party to be allowed to lead farther evidence, the Lord Ordinary pronounced the following interlocutor, adding the note subjoined: ^*—“Having considered this Record, in reference to

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^* “The case of Anderson, 18th June, 1834, is reported so as to convey the impression that the Second Division of the Court intended to lay it down as a general rule, that whenever additional evidence should be brought forward in the reduction of a service, it should be taken on commission, and not before a jury. On the other hand, it has been stated that no such general rule was meant to be established. This is a point on which the Lord Ordinary thinks it his duty to consult the Court, especially as the expediency of such a rule has, since the report of the case of Tushielaw, been much questioned. It will be observed, that, in the present case, there is a charge of forgery or fabrication of writings—a proper jury question.”