United Kingdom House of Lords Decisions

Immediately on obtaining their service the respondents raised an action of reduction of the service of the appellant, on the ground that as he had been served heir in a more remote degree than the respondents his service was necessarily excluded by their service in the nearer degree; and they also made certain formal objections to the regularity of his service. The appellant raised a counter action of reduction of the respondents service, on the ground, first, that the respondents were in no way related to the town clerk, as the William Watson from whom they were descended was not a son of Alexander Watson and Mary Marshall, that the pedigree which they had framed was false, and had been manufactured by them, with the assistance of certain other parties, that their service had been obtained by the testimony of their own near relations, who, if successful, would have right to the executry, and also by other incompetent evidence; and, second, that the service was incompetent, in respect that it had been expede posterior to that in favour of the appellant, and that, notwithstanding the caveats, no notice had been given to him of the issuing of the brief.

The Lord Ordinary, after the record was closed, pronounced this interlocutor in the action at the instance of the appellant:—

“Before answer as to any points in the cause, in respect that the defenders offer to support the proof of their propinquity as set forth in their claim in the service under reduction by other and supplementary evidence, finds that it is competent for them to lead such additional proof in this reduction; allows them a proof accordingly, and to the pursuer a conjunct probation, and grants commission,

Page: 538↓

&c., reserving all questions as to the other grounds of reduction, and reserving all questions as to the competency and effect of the evidence already adduced.”

His Lordship at the same time pronounced the following interlocutor in the action at the respondents instance:—

“In respect of the interlocutor pronounced of this date in the counter action of reduction betwixt the parties, sists farther procedure in this process hoc statu.”

A supplementary proof was accordingly adduced before the commissioner; and the respondents having objected to a particular line of evidence proposed to be entered on by the appellant, the Lord Ordinary pronounced this interlocutor:—

“Finds it is competent for the pursuer, under the conjunct proof allowed to him, to prove all facts embraced by his condescendence, tending to show that the alleged pedigree or line of propinquity founded on by the defenders is false, and was got up by fraudulent contrivance and collusion with other persons, or that their service was prepared and carried through by them or their agents, in the knowledge that the pursuer had been previously served heir to the deceased, and with the design of concealing the proceedings from him, in order that he might have no opportunity of appearing to investigate the proof or oppose the claim: Finds that the proof now proposed to be adduced by the pursuer, as explained in the first part of this minute, though it may have a particular application to other substantive grounds of reduction libelled, has yet a sufficient pertinency and relevancy to the question, as to the truth or falsehood of the pedigree put forward by the defenders, and to the credit and

Page: 539↓

value of the proof adduced in support of it, and has also a farther relevancy to meet the inference deducible from the proof already led and admitted on the part of the defenders: Therefore finds the course of proof proposed generally competent, and remits to the commissioner to proceed accordingly.”

The proof having been concluded, and reported to the Lord Ordinary, his Lordship appointed the questions to be argued in Cases, and at the same time issued this note:—

“The Lord Ordinary has not been able, since the debate was concluded, to consider the proof, and the various points of argument applicable to it, in such a manner as to form an opinion on the merits of it. It may be necessary, however, to call the attention of the parties particularly to one point, on which the ultimate extrication of the case may, in a certain event, very much depend. The record was prepared, and the additional proof allowed in this reduction, at the instance of Alexander Watson, while the counter reduction, at the instance of the defenders, stood sisted mainly on this principle, that if it should appear that the propinquity of the defenders, Ann and Isabel Watson, was made out, there would be an end of the cause, and it would be unnecessary to discuss the merits of the pursuer's claim or service, seeing that the former claim was in a nearer degree. But if it should be the opinion of the Court that the propinquity of the defenders is not proved, it may not necessarily follow that their service is to be reduced at the instance of the pursuer without trial of the merits of his service, and allowing him, if he desires it, in the other action to lead additional proof, or the pursuers in that action to impeach his propinquity

Page: 540↓

by evidence. The Lord Ordinary does not mean to give any opinion on that question; he only thinks that it is very material that it should be attended to in preparing the cases. The Lord Ordinary would also suggest that the point urged on the part of the pursuer, concerning the ages of old William Watson and his sons, has appeared to him to be of great importance, and he doubts whether it was sufficiently obviated in the able argument for the defenders.”

On advising the Cases the Court, on the 25th of February 1835, repelled the reasons of reduction, assoilzied the respondents, but found no expenses due. ^*

Alexander Watson appealed, and resumed in detail the argument maintained by him in the Court below, that the service obtained by the respondents ought to be set aside as irregular; and that at all events the evidence by which it was supported was incompetent and insufficient.