United Kingdom House of Lords Decisions

You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Sir Robert Gordon, of Gordonstoun, Bart. v. James Brodie of Brodie, Esq; [1720] UKHL Robertson_259 (8 February 1720)
URL: http://www.bailii.org/uk/cases/UKHL/1720/Robertson_259.html
Cite as: [1720] UKHL Robertson_259

[New search] [Printable PDF version] [Help]

SCOTTISH_HoL_JURY_COURT

Page: 259↓

(1720) Robertson 259

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 56.

Sir Robert Gordon, of Gordonstoun, Bart. Appellant

v.

James Brodie of Brodie, Esq; Respondent

8th February 1719– 1720.

Subject_Process — Incident Diligence. —

In mutual actions relative to the property of a common, several witnesses on both sides, are examined upon an act and commission; and upon a second diligence others, who had not before appeared, are also examined: one of the parties gives in a new list of witnesses, praying a new act and commission, and to have some witnesses re-examined on commission who had already deponed before the Court; but his petition is refused.

Subject_Costs. —

30 l. costs given against the appellant.

The appellant was proprietor of the lands of Drainie, and the respondent of the lands of Kinnedour, in the county of Moray. Adjacent to the several estates was a piece of moor and meadow land, called the moor of Drainie, to which both parties claimed a right. The respondent and his tenants being prevented by the appellant from pasturing the same, the respondent brought an action against the appellant before the Court of Session to have it declared that the said moor and meadow land were pertinents of his lands of Kinnedour, at least that they belonged to him in common with the appellant: and the appellant thereupon brought a counter action to have it declared that the contested ground was a pertinent of his lands of Drainie, that the property thereof belonged solely to the appellant and that the respondent and his tenants might be enjoined not to disturb his possession of the same. It appears that the respondent's summons had been first dated, but that the appellant's was first executed.

After both parties had produced in Court the several charters, infeftments and other writings by virtue of which each of them claimed, the Court, before determining the import of these writings, by interlocutor on the 14th of February 1718, “allowed both parties to prove by living witnesses by whom and in what manner the controverted lands had been possessed, for some time past, and with consent of parties granted a commission to” certain persons “to take the oaths of such witnesses as the parties should think proper to bring before them upon the ground of the controverted lands to give evidence in the said matter, and ordered their depositions to be brought into court the first of June following.”

Several witnesses were summoned by both parties and deponed upon the contested premises. All the witnesses who were summoned not having appeared, both parties obtained in July 1718 an act, ordering those who had not appeared to come and make oath before the Court. Some of the respondent's witnesses were according examined before the Court, and the appellant afterwards presented a petition, setting forth that he had received information of some old witnesses who might be privy to several facts in question, of whom he was before entirely ignorant, and some of whom had been abroad, and had returned home since the execution of the

Page: 260↓

original act and commission; and he prayed the Court to grant a new act and commission for examining the new witnesses (whose names were annexed to his petition,) and likewise to re-examine some of the witnesses already examined, some of whom had been examined before the Court; and the appellant agreed to have the act and commission reported before expiration of the time already allowed for examining witnesses. On the 24th of July 1718 the Court “refused the desire of the appellant's petition.”

Entered, 7 Jan. 1718–19.

The appellant reclaimed: but the Court on the 29th of July 1718 also “refused the desire of the petition.”

The appeal was brought from “two interlocutory sentences or decrees of the Lords of Session of the 24th and 29th days of July 1718.”

Heads of the Appellant's Argument.

When, by the law of Scotland, liberty is given to both parties to examine witnesses, and a commission is granted for that purpose, the examination is not closed by the return of the commission, nor is either party barred from adducing further proof until there be an order of the Court for that purpose, which is called a circumduction of the term: and such an order is necessary before the Court proceed to give judgment, or determine upon the evidence. But no such order was made in this cause, and therefore the appellant ought to have been indulged in what he applied for.

B. 4. Tit. 46. § 6.

Though regularly all the witnesses ought to be examined, when the commission is executed, yet if new witnesses be discovered, whereof the appellant was entirely ignorant when the commission was executed, it would be very hard if he should be deprived of the opportunity of examining these witnesses, so lately come to his knowledge, or such of them as were out of the kingdom, and whose residence he was not at all acquainted with till after the execution of the commission. It has therefore been almost the uninterrupted course of the Court of Session to come into such a motion. Lord Stair is an express authority for this: he says; “Yet by supplication for more witnesses, in place of these that are dead, or out of the country, or for witnesses new come to knowledge; the party deponing that they are come to knowledge since the former diligence, will get a diligence against these other witnesses.” If a new diligence be to be granted in any case, it ought to have been in the present, where the appellant was but lately come of age.

3 Dec. 1717.

29 Nov. 1718.

The Court of Session have been almost in constant use to grant such commissions, and particularly in two cases very lately; the one was Smith v. Heritors of Kinnaird, where upon an application by a petition from the pursuer, the Court, after witnesses had been examined, granted liberty for summoning new witnesses not formerly cited, and for re-examining some witnesses who had been formerly examined. In the other, The Earl of Marchmont v. The Earl of Home, the Court did the like. So their Lordships, both before and since the appellant's application to them, have granted to others what they refused to him.

Page: 261↓

This ought the rather to have been granted, since the appellant agreed to have the witnesses examined and the commission returned, before lapsing of the time granted to the respondent for the examination of his witnesses.

Heads of the Respondent's Argument.

No new discovery of witnesses proceeded from the depositions of those already examined, nor was it so pleaded for the appellant in the court below. He had formerly summoned thirty-five witnesses to give evidence in the cause, many of them his own tenants, who had lived long near to the controverted lands, and as many of them as the appellant thought proper to examine, have made oath upon their knowledge of the limits and boundaries of the ground in dispute, and how the same was possessed by the respondent and his predecessors. The appellant too had a second diligence allowed him against such of the witnesses as had not appeared upon the first, and these were brought to Edinburgh, and deponed before the Court. But their not proving the allegations of the appellant, was the true reason of his petitioning the Court for leave to bring in fresh evidence: and the appellant had not been straitened in point of time, for after his action came before the Court of Session, he had eight months to summon such witnesses as he thought fit.

The appellant contended, that some of his witnesses who had deponed, had not been examined, concerning several facts, which it appeared by the oaths of his other witnesses that they had particular knowledge of; and therefore those ought to be re-examined upon the ground of the controverted lands, and a commission or warrant granted for that purpose. Though the Court indeed sometimes in extraordinary cases have directed evidences to be reexamined in their own presence, for clearing any point that might be doubtful in their oaths; yet they never allow witnesses, who had deponed before the Court, to be re-examined upon a commission. Three of the witnesses in question were then also in Edinburgh.

12 June, and 2 July, 1718.

After a pursuer's own evidences have deponed, and he has an opportunity of seeing the testimonies of the evidences brought in for the defender, the Court never allows the pursuer to bring in more witnesses than he has at first made choice of, lest the one might contradict the other, and thereby be guilty of perjury: and in a parallel case, betwixt Mackenzie of Rosend, and Swinton of Strathore, the Court of Session refused to grant warrant for summoning new witnesses.

The appellant contended, also that some of the witnesses, whom he had discovered to be necessary for his purpose were not in Scotland at the time of the examination, and so could not be brought in evidence; and secondly, that the appellant could not be barred from further proof until circumduction of the term. But, when the appellant put into Court a list of the twelve new witnesses, it was asserted for the respondent, that seven of them were either dead, or none such to be found out; and that the

Page: 262↓

other five were the appellant's own tenants, whom he could not be ignorant of, and might have summoned with the first thirty-five witnesses. To this no answer was made. And though there was no circumduction of the term made when the appellant petitioned the Court in July 1718, yet such circumduction was made in December thereafter, before the petition of appeal was lodged; and that interlocutor is not appealed from.

The appellant in the Court below supported his allegations by the decisions of the Court, Sir John Houston against Cochran of Kilmaronock, and Smith against the Fewars of Brichen, in both which cases the Court allowed the pursuers a warrant for summoning new witnesses. But these precedents differ very much from this case: that of Sir John Houston against Cochran was in order to discover a fraud; and there it appeared that some witnesses pointed out new discoveries that might be made by others, which in such a matter it was most just for the Court to enquire into. But here the facts were all plain, done in the open fields, within a furlong of the appellant's house, and he and his tenants were daily witnesses of the respondent's possessing the ground in controversy, and so could not be ignorant of the proper witnesses he was to make use of. Neither is the case, Smith against the Fewars of Brichen, the same with this; for that action was at the instance of a minister for proving what the defenders were in the use to pay yearly to his predecessors; ministers are presumed to be ignorant of what their predecessors possessed, and by their ignorance their successors in office might be deprived of a living. Before any such warrant be granted, even in the most favourable case, the Court must be satisfied that it is res noviter veniens ad notitiam. The respondent is sufficiently supported by the act of Parliament 1672. c. 16. Art. 25. whereby it is statuted, that “there shall only be two diligences against witnesses” &c.; so that if they appear not to give evidence upon the first summons there is a second warrant for taking them into custody until they give caution to appear: and he is supported, also by the acts of sederunt, by which it is clear the appellant is excluded from all pretence of summoning new witnesses.

Judgment, 8 February 1719–20.

After hearing counsel, It is ordered and adjudged, that the petition, and appeal be dismissed, and that the interlocutors, sentences or decrees complained of in the said appeal be affirmed: and it is further ordered, that the appellant do pay or cause to be paid to the respondent the sum of 30 l. for his costs in respect of the said appeal.

Counsel: For Appellant, David Dalrymple. Rob. Raymond. Will. Hamilton.
For Respondent, Thomas Lutwyche. Sam. Mead.

1720