Cook v Crane
| Jurisdiction | Scotland |
| Judgment Date | 28 June 1922 |
| Docket Number | No. 81. |
| Date | 28 June 1922 |
| Court | Court of Session |
Lord Ormidale, Lord Hunter, Lord Anderson.
Sheriff—Procedure—Proof—Allowance of ‘further proof’—Evidence of new witnesses coming forward after proof closed—Sheriff Courts (Scotland) Act, 1907 (7 Edw. VII. cap. 51), sec. 27, as amended by Sheriff Courts (Scotland) Act, 1913 (2 and 3 Geo. V. cap. 28).
The Sheriff Courts (Scotland) Act, 1907, sec. 27, as amended by the Sheriff Courts (Scotland) Act, 1913, enacts:—‘It shall be competent for the Sheriff, when the action is before him on appeal on any point, … to allow further proof.’
The pursuer in an action of affiliation, when the case was before the Sheriff on appeal, was heard upon a minute setting forth certain facts which, she averred, had come to her knowledge after the proof had been closed, and which she now asked leave to prove by three new witnesses, for the purpose of corroborating the evidence already led by her. The Sheriff allowed a proof of the averments in the minute, being of opinion that ‘a miscarriage of justice might result if the opportunity of proving them were denied,’ and thereafter granted decree in her favour. On an appeal to the Court of Session the defender objected to the admission of this evidence.
Held that sec. 27 of the Sheriff Courts Act, as amended, conferred on the Sheriff a discretion with the exercise of which the Court would not interfere unless it was clearly shown, as had not been done here, that the Sheriff had acted unreasonably; and appeal dismissed.
Jessie Cook, domestic servant, Echt, brought an action of affiliation and aliment in the Sheriff Court at Aberdeen, against John Crane junior, Dunecht. The pursuer averred that, in or about the months of February, March, April, and May 1920, the defender had carnal connexion with her within the policies of Dunecht House, as the result of which she gave birth to an illegitimate male child on 23rd December 1920.
Proof was led and closed on 20th June 1921. On a subsequent date, before parties' agents were heard on the evidence, the pursuer lodged a minute which set forth:—
‘The pursuer respectfully states to the Court that since the proof in this case was led on 20th June 1921, she has received information of, and avers and offers to prove, the following facts:—First, that William Lauderdale Cooper, engine-driver, Walkendale, Dunecht, witnessed an act of carnal connexion between the parties in a wood within the policies of Dunecht House in the end of March or beginning of April 1920, and that the said William Lauderdale Cooper, on several occasions, both before and after the said act of connexion, saw the pursuer and defender walking together on the paths and in the woods around Dunecht House, the defender having his arm round the pursuer's waist. The said William Lauderdale Cooper did not reveal the foregoing facts to anyone until he heard, on the day following the said diet of proof, that defender had denied on oath having carnal intercourse with pursuer, when the said William Lauderdale Cooper disclosed said facts to pursuer's sister. Second, that James Meldrum, farm servant, Damseat, Dunecht, a companion of the defender, during the months of February, March, and April 1920, saw pursuer and defender walking together and also sitting together about the woods and buildings within the policies of Dunecht House, and that on an occasion in the summer of 1920, on the public road opposite Leslie, the merchant's, shop in Waterton Village, the defender admitted to the said James Meldrum that he had been having carnal intercourse with the pursuer, and that on another occasion, after pursuer returned from England, and about a week before the child in question was born, the defender again admitted to the said James Meldrum, in the course of a conversation between them, with regard to pursuer's approaching confinement, that he could not deny having carnal dealings with pursuer, but thought he might get clear of it, because the last occasion they were in company together, pursuer had her monthly illness. The said James Meldrum did not reveal the foregoing facts to anyone until 24th June 1921, when, in answer to a challenge by pursuer's sister, he disclosed same to her. Third, that in the spring of 1920, while pursuer and defender were keeping company together, the defender, in the course of a conversation with Leslie Duthie, postman, Waterton, Dunecht, in regard to one of the female servants at Dunecht House other than pursuer, expressed surprise that her sweetheart had kept company with her so...
To continue reading
Request your trial
-
Ian Mccalman Rankin (ap) V. John Jack Trading As Lochill Equestetrian Centre
...(1864) 2M 1226, Coul v Ayr County Council 1909 SC 422, Mitchell v Sellar 1915 SC 360, Gairdner v Macarthur 1915 SC 589, Cook v Crane 1922 SC 631, Davidson v Duncan 1981 SC 83 and Ralston v Secretary of State for Scotland 1991 SC 336, is of limited assistance in the present context. It is ap......
-
Appeal By (first) Theresa Stirling And (second) William Stirling Against Landmark Mortgages Limited (formerly Nram Plc And Northern Rock (asset Management) Plc)
...acted unreasonably or perversely, or that he adopted an approach which no reasonable sheriff principal would have adopted (cf Cook v Crane 1922 SC 631; Britton v Central Regional Council 1986 SLT 207). Accordingly the additional evidence was properly before the court. The sheriff principal ......
-
Ralston v Secretary of State for Scotland
...appellate court to adopt had been discussed. He referred to Coul v. Ayr County Council 1909 S.C. 422;Gairdner v. Macarthur; Cook v. Crane1922 S.C. 631 and Davidson v. DuncanSC 1981 S.C. 83. Although he accepted that the matter was one for the discretion of the court and that the decision di......
-
Davidson v Duncan
...proof. That could only be done on the motion of a party. The powers of the Sheriff Principal in this regard are set out in Cook v. Crane1922 S.C. 631. While the interlocutor does not refer to any such motion being made by one of the parties, a reading of the history of events at the time le......