Scottish Court of Session Decisions

Lord Gillies.—It is an essential part of the form of depositions on oath, that the report should bear that the witnesses were duly sworn. I think the Court should not dispense with it; and that, at any rate, there is no ground whatever for doing so in this instance. There can be no difficulty in having these witnesses re-examined, and a regular report returned.

Lord Mackenzie—The proof of the value of the lands is a most important part of the process. The fixing of the upset price is regulated by it, and the estate may perhaps be bought at the price so fixed. I think the irregularity in the report of this proof ought to be cured immediately, as it can easily be. I remember a case having occurred, in which the commissioner, leading the proof, had omitted to sign after the witnesses; and both parties, in discussing the import of the proof, consented to waive ail objection on that ground. I considered the irregularity to be thereby cured. But the Court thought otherwise, and held that they could not overlook the irregularity which had been committed. But the present case is a great deal worse than that; and I may observe, that even viewing this point merely as a question of economy on the narrowest grounds, and without reference to the ulterior consequences which such irregularity might have if we permitted it, the estate would probably sell at a price so much lower if this irregularity were not removed, that the expense necessary for removing it, by leading a correct proof, will be well laid out for the immediate benefit of the estate.

Lord Corehouse.—I think this Court ought not to dispense with essential forms. If this irregularity had not been pointed out at the present stage, and a sale had taken place under the process, and then a reduction of the decree of sale had been brought, we should have been compelled to look more anxiously into the question of this irregularity. But at present no reason, deserving of any attention, can be stated for our allowing this irregularity to pass. It should be corrected by making the proof regular. The correction will occasion a little more expense; but the expenditure is both necessary and beneficial for all concerned.

Lord President.—I am of the same opinion. The additional expense and delay which will be occasioned by correcting the irregularity which has occurred, are of no moment, in comparison with the advantage of having the whole procedure correct and unchallengeable.

THE COURT instructed the Lord Ordinary to find that the report of the proof was irregular, and to remit anew, that the proof might be regularly taken and reported.