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An acceptance of the late Thomas M'Caughie for L.50, dated the 28th September 1813, and payable three months after date, was indorsed by the drawer to John Muir, and by him to a third party, who indorsed it to James Barbour. In 1826, Barbour brought an action against M'Caughie's representatives, before the sheriff of Dumfries-shire, concluding, inter alia , for payment of this bill. The sheriff sustained the defence of prescription, and assoilzied the defenders, the pursuers having declined a reference to oath.
Insertion of this new statement in the record was asked, upon the ground of res noviter veniens ad notitiam ; but the Lord Ordinary ‘found that the said statement cannot be held as res noviter veniens , and in hoc statu refused the same.’ The Lord Ordinary added, that he ‘thought he was bound by the act of sederunt to refuse as above,’—referring, as was understood, to the act of the 12th Nov. 1825, sect. 68, relative to procedure in the Court of Session.
The advocator reclaimed ;—and the Court unanimously concurred in the finding of the interlocutor. Their Lordships observed that it would be dangerous in this case to sustain the plea of res noviter veniens —a plea of forgetfulness of a judicial step taken by the party himself, with the view of operating payment of the bill in question. For how could it possibly be known that, in point of fact, interruption of prescription had not previously been pleaded in consequence of the circumstance of the production of the bill in Muir's sequestration having been forgot by the advocator?
But their Lordships were not prepared to hold that the objection of competent and omitted, which the advocator attempted to exclude by the plea of res noviter , was applicable to proceedings in the inferior court, notwithstanding the terms of the late act of sederunt referred to by the Lord Ordinary. The Court, therefore, remitted to his Lordship ‘to hear parties on any other grounds that may be stated by the advocator for admitting the proposed additional statement, productions, and pleas, different from that of res noviter veniens ad notitiam ,’ &c.
Lord Mackenzie, Ordinary. For advocator, R. Thomson. W. Dalrymple, Agent. For respondent, A. M'Neill R. Welsh, Agent. T. Clerk.
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