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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Richardson v. Fleming [1867] ScotLR 3_287_1 (7 March 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/03SLR0287_1.html Cite as: [1867] ScotLR 3_287_1, [1867] SLR 3_287_1 |
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Page: 287↓
Held (1) that a call for all titles and plans relating to the subject in question was too wide; (2) that a pursuer having anticipated the defender's case when leading his proof in chief, he was not entitled to ask questions in his conjunct proof which he had already put when leading his proof in chief; but (3) that he was entitled to lead conjunct proof in regard to matters which he had not so anticipated.
In this action, raised by Sir John Stewart Richardson of Pitfour against Mrs Fleming of Inchyra, for declarator of sole right to the salmon fishings opposite to Cairnie, part of the lands and barony of Pitfour, the defence set up is that, although there is no doubt of the existing boundary between the estates, the defender has possessed from time immemorial on a title of excambion a part of the river which is opposite to the pursuer's lands. The case was before the Court to-day on appeals taken by the parties in the course of leading the proof.
Clark and Lee for pursuer.
Young and Gloag for defender. The following were the points decided:—
(1)That a call by the defender on the pursuer to produce all titles, plans, &c., relating to the fishings claimed by the defender was too wide, and was therefore inadmissible, it being necessary, before such a call should be acceded to, that a special case should be stated.
(2) That the pursuer having anticipated in great measure, when leading his proof in chief, the case of the defender, which was disclosed on record, he was not entitled, under his conjunct probation, to resume his examination in chief by putting questions to the witnesses which had already been put. He had led substantive proof to meet the defender's case, and he could not now be heard to plead that such proof was incidentally led.
(3) That, so far as the evidence taken under the conjunct probation related to matters which the defender had made subject of proof, and which the pursuer had not anticipated, it was admissible.
Page: 288↓
Agents for Pursuer— Mackenzie & Kermack, W.S.
Agents for Defender— Hamilton & Kinnear, W.S.
