United Kingdom House of Lords Decisions

Nov. 24, 1783.

When the case came before the Commissaries, an interlocutor, in terms of the judgment of the House of Lords, was then pronounced, whereupon the appellant again, by a reclaiming petition, raised the question, on a new ground of law, insisting that she was entitled to a proof of all facts and circumstances tending to support the other grounds of her libel, and that she was prepared to prove and establish a constructive marriage. After some discussion, a condescendence was ordered. The condescendence was given in, but it appearing to be almost entirely founded on the letter already adjudicated upon, the Commissaries rejected the proof offered. On reclaiming petition to the Court, their Lordships allowed her a proof of her condescendence, and in general of all facts and circumstances in support of the libel. In contending for this result, she stated, that as she had been misled by the Commissaries and by the Court of Session, who had decided that the written acknowledgment was sufficient, she was restrained from going into a proof of all facts and circumstances constituting a marriage between them in general terms. In answer, the respondent stated, that having been allowed a proof of whatever facts and circumstances she thought proper to insist on for establishing this alleged marriage, she was cut off from going into any new proof. The parties had joined issue, and the appellant chose to rest her cause upon the evidence of the letter, together with what appeared from the mutual declarations of the parties. She in effect renounced all other proofs, and agreed that the cause should be determined upon that issue alone. Nothing therefore was omitted per incuriam. She stated in substance the facts she now states, and having be-taken herself to a certain mode of proof, and waived all further proofs, the question cannot be raised again. Besides, in the civil law, after a party had concluded on taking a proof, he was not on any account allowed any further proofs, as appears from Novel, 115, cap. ii. In Scotland, when an act is once pronounced, whether of litiscontestation, or before answer, and a proof closed, the parties cannot be allowed to propone new facts and allegations, which is expressly provided by the Act of Sederunt, 23 July 1674.

Jan. 24, 1784.

Feb. 10, 1785.

The Court adhered to their former interlocutors.