Scottish Court of Session Decisions

The petitioner here was the defendant in an action for recovering certain heritable property in Manchester which was to be tried at the Liverpool Assizes. The petition set forth—“That the right to the said property depends upon the genealogy of a Scotch family, which genealogy formed in the years 1872 and 1873 the subject of a litigation in the Court of Session in an action of multiplepoinding and exoneration at the instance of John Todd, surgeon in Colinsburgh, and another, the executors of the deceased Miss Anne Duncan of Balchrystie, in the county of Fife, against David Salmond, manufacturer, Islelane Cottage, Hawkhill, Dundee, and others; in which action the First Division of the Court of Session gave judgment. That the petitioner is advised that it is absolutely necessary for the proper conduct of his defence to said action before the said High Court of Justice, and for the determination of said case, that the process in said action of multiplepoinding and exoneration, the decree in which has been extracted, must be produced at the said trial, but for this purpose the order of your Lordships must be obtained That it is further necessary, in order to establish the petitioner's defence to said action, that certain original records or registers, more especially referred to in the prayer hereof, now under the care of the Registrar-General for Scotland, should be produced at said trial in Liverpool. The petitioner is advised that he cannot competently tender in evidence copies or extracts

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of the necessary entries in the said records or registers, but that it is absolutely essential to his case that the original entries should be produced. That it is further necessary that the original of the submission between Helen Duncan, widow, and others, and William Cunningham, and of the decreet-arbitral following thereon, as also the originals of the wills and whole other testamentary writings of the following persons, should and must be produced at said trial, viz., George Duncan and Helen Imrie, his spouse, of the Walltree of Fingask, in the county of Perth; of George Duncan and Ann Cunningham, his spouse, of Fingask aforesaid; of John Cunningham, in the Muirton of Balhousie, in the county of Perth; and of David Duncan of Balhousie aforesaid. The said deeds are now in the custody of the Sheriff-Clerk of the county of Perth. That the present application has been duly intimated to the Depute Clerk-Register, to the Deputy Keeper of Records, and to Mr John Thomas, Sheriff-Clerk of the county of Perth.”

The petitioners therefore prayed the Court “to authorise and ordain the said Registrar-General for Scotland to produce and exhibit at said trial in Liverpool, under the custody of an officer to be selected by him, the parochial registers for the parishes of Perth, Rhynd, Dunbarney, Forgandenny, Forteviot, Tibbermuir, Abernethy, Scone, Kinfauns, Dron, and Kinclaven, all in the county of Perth, and of the parish of Newburgh in the county of Fife, for the period from the year 1700 to the year 1820; and also to authorise and ordain the Lord Clerk-Register, or his Depute, to transmit or produce and exhibit at said trial the foresaid process of multiplepoinding and exoneration; and also to authorise and ordain the Sheriff-Clerk of the county of Perth to produce and exhibit at said trial the foresaid submission and decreet-arbitral, and wills and whole other testamentary writings of the persons above mentioned presently in his custody or possession.”

J. A. Reid, for the petitioner, admitted that he could find no case in which the Court had authorised registers of births, marriages, and deaths to be sent out of the jurisdiction of the Court. He referred, however, to Cochrane v. Ferrier, March 16, 1859, 21 D. 749; and also pointed out that under section 58 of the Registration (Scotland) Act (17 and 18 Vict. cap. 80) it appeared that certified extracts of registers were admissible as evidence only when the register books had been kept under the provisions of the Act, while the books here sought were of a date long anterior to 1854. [ Lord President—I suppose that if we refuse this petition that will open the door to the admission of secondary evidence in the English Court.] As regards the process of multiplepoinding, he referred to Power v. Lord Clerk-Register, March 18, 1859, 21 D. 782; and Shedden, July 19, 1862, 24 D. 1446. [ Lord President—You may be quite sure that what was done in Shedden's case will not be repeated.] As regards the other documents, he referred to Duncan, July 14, 1842, 4 D. 1517; Adamson, July 17, 1852, 14 D. 1045; Dunlop, Nov. 27, 1861, 24 D. 107; Bayley, May 31, 1862, 24 D. 1024; Jolly, June 25, 1864, 2 Macph. 1288; Young, Feb. 2, 1866, 4 Macph. 344; Western Bank of Scotland, March 20, 1868, 6 Macph. 656; Macdonald, Nov. 3, 1877, 5 R. 45. [ Lord President—In all these cases the question was, What interest has the petitioner in the deed? but you have not shown what your interest is in these wills?]

The Lord Clerk-Register did not lodge answers, but the Deputy Clerk-Register appeared at the suggestion of the Court. He was not called on.

At advising—