United Kingdom House of Lords Decisions

In answer, the respondents contended, that the challenge of forgery, and the above statements were entirely an invention of Mr Young of Netherfield, who was principally concerned in prosecuting this action. That it could be proved by the instrumentary witnesses then alive, that the conveyance was duly executed. That Mr Young was for some time possessed of the writings, and particularly of the conveyance under challenge. And that he had so prepared matters as to furnish a handle for the game he pursued, if it was true, that the conveyance wanted the subscription of Mathew Lowdon on one of the pages, which was the pretence for setting it aside. That, therefore, before any proof was allowed, Thomas Scott ought to declare by writing under his hand, “Whether he had entered into any written agreement with Mr Young, or any person for his behoof, concerning his right to the lease of Midlin Bank. And whether Mr Young had not defrayed the expense of making up Scott's titles, and of carrying on the action, and whether he had not the sole direction thereof.” He appeared by order of the Lord Ordinary, and declared negative of this.

A proof having been allowed, it was proved by James and William Young, who were present at the meeting, and who deponed, “that the whole writings relative to the foresaid lease were then produced and shown by James Cochran, and were read over, and that the assignment from Mathew Lowdon at that time wanted his subscription on the first page.”

Feb, 17, 1756.

The Lords pronounced this interlocutor:

“Repel the reasons of reduction, and assoilzie the defenders from the

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process of reduction, improbation, and of removing at Thomas Scott's instance. Find expenses due, and find James Young of Netherfield liable in payment of the said expenses, and ordain an account thereof to be given in; and also recommended to the lawyers for the Crown to inquire into the said James Young's conduct in the proceedings in the said process, and to prosecute him, if they should see cause, and decern.”

A further proof as to the subscription was allowed, from which it appeared, that when James Cochran produced the assignation of the lease from Lowdon to Baird at the said meeting, James Young then pointed out to Cochran, in the presence of the meeting, that it wanted the subscription of Lowdon on the first page thereof.

Dec. 7, 1757.

The Lords, of this date, pronounced this interlocutor:

“Adhere to their former interlocutor, of date the 17th February 1756, in so far as it repels the reasons of reduction, and assoilzies the defenders from the process of reduction, improbation, and removing, at Thomas Scott's instance: Find expenses due, and that James Young of Netherfield is liable for the same; but find there is no sufficient ground for the latter part of the said interlocutor, recommending to the lawyers for the Crown to inquire into the said James Young's conduct in this process, and to prosecute him, if they see cause, and therefore recall the same.”

Feb. 3, 1758.

The appellants reclaimed, and the Court pronounced this interlocutor:

“Find it proven, that the subscription of Mathew Lowdon had been adhibited to the first page of the translation, after his death; but find it not proved that either of the parties were accessory to adhibiting this subscription; and therefore, and in respect it was not denied that the subscription adhibited to the second and last page is a true subscription, adhere to the former interlocutors, assoilzieing the defenders from the process of reduction, improbation, and removing, and recall the recommendation to the lawyers for the Crown. But, in respect of Netherfield's conduct in the proceedings in the said cause, adhere to the former interlocutors, finding him liable in expenses.”

Against these interlocutors the present appeal was brought to the House of Lords.

After hearing counsel,