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fined as this branch of evidence is to these two witnesses, it is any thing but strong.
For M.Blain, who was born in 1755, does not profess to know any thing of the facts herself. She merely repeats what she says, that the last Countess of Mount Alexander told her. Now, when these statements were made by the Countess, the witness says, that she herself could not have been older than fourteen or fifteen ; and as she was eighty when she was examined, they must have been made about sixty-six years before. What reliance can be placed on the recollection of a child, as to names and relationships, uttered casually in her presence sixty-six years ago ? Then the person from whom she gets this hearsay, was born, according to this deposition, in 1707 ; yet she speaks of John of Gartmore, who, the defender says, died in 1666, and of his alleged son, John of Antrim, who is said to have died in 1712. This lady, moreover, was a foreigner, and probably never heard of these families till she grew up, which increases the distance between her and the facts. No wonder that all that is got from the witness, in these circumstances, is the abstract fact, that the pedigree is as the defender states it.
Battersby's source of knowledge is still more remote. She was fifty-one when she was examined, and twelve or thirteen when her grandmother died; so that she could learn nothing from her grandmother short of thirtyeight years before, and when she was almost a child. Nothing that her grandmother could have said, even of her own knowledge, could be well authenticated by such a witness. But her grandmother said nothing of her own knowledge. All that the witness states, is, that she “has heard her grandmother say that she heard her father say, that the said John of Antrim was COME of the Alexanders from Scotland, and was NEARLY related to the Earl of Mount Alexander in Ireland. Heard her grandmother also say, that she had heard from her father, that John of Gartmore was the Honourable John Alexander, and was the father of John of Antrim." It is needless to consider what would be the weight due to the father's bare assertion ; for this hearsay of a hearsay does not admit of being weighed.
On the whole, the Lord Ordinary is of opinion that the evidence, whether considered in its separate parts, or as a whole, is utterly insufficient to sustain the verdicts. And it is impossible not to be struck with the number of collateral facts, by which, if the claim be well founded, the proof might have
been strengthened, but in which there is a total absence of evidence.
The defender maintained, upon the authority of the case of Bell, as reported by Mr Murray, (vol. 2, p. 130,) that he being in possession of the service, and not opposed by any competitor for the character of heir, had nothing to do but to exhibit his retour, unless a case was made out against him, by positive evidence on the part of the pursuers; or in other words, that the mere insufficiency of the defender's proof, was no ground for setting the verdict aside. The Lord Ordinary does not recognize this doctrine. Bell's was the only case, he is aware of, in which the reduction of a service was referred by this Court to a jury, as an ordinary action of reduction. Happening to be dealt with in this way, the doctrine ascribed to the Judges who tried it may have been proper. But when verdicts in services, and especially in ex parte services, are reviewed by this Court itself, the Lord Ordinary understands the principle to be, that the Judges must themselves be satisfied of the validity of the evidence, and that its inadequacy to support the verdict is of itself a legal ground for reducing it.
NOVEMBER 27, 1837.
ALEXANDER, EARL OF STIRLING.
OFFICERS OF STATE
Edinburgh, 15th November, 1837.-The Lords allow the Minute to be given in as crayed.
(Signed) D. Boyle, I.P.D.
ALEXANDER, EARL OF STIRLING, Defender ;
In the Process of Reduction Improbation at the Instance of
THE OFFICERS OF STATE, Pursuers.
In this case, which is a process instituted by the Officers of State, for the purpose of reducing the services of the defender to his great-great-great grandfather, William, the first Earl of Stirling, a proof was allowed to both parties. The term
was circumduced of this date ; and the Lord Ordi
nary, after hearing parties, decerned in terms of the reductive conclusions of the summons.
Nov. 23, 1836.
In a note subjoined to that interlocutor, his Lordship stated, that “there are two descents in the defender's pedigree, and the
pursuers maintain that neither of these is established. They deny it to be proved, that the Rev. John Alexander was the son of John of Antrim, who is said to have died in 1712, or that this John of Antrim was the son of John of Gartmore, who is said to have died in 1666." His Lordship was pleased to add, that “the whole of the defender's case depends upon the genuineness of these two descents.”
The defender has lately come to the knowledge of various documents, which tend very materially to strengthen the evidence of propinquity, in regard to the two descents referred to by the Lord Ordinary. By these newly discovered documents, he trusts he will be able to establish, that John Alexander of Gartmore, after he lost his wife, Agnes Graham, heiress of Gartmore, married, as his second wife, Elizabeth Maxwell of Londonderry, by whom he had an only son, John, and that he died at Derry in 1665-1666: That this John Alexander, the son of John of Gartmore, received his early education at Londonderry: That he was afterwards sent to a German university, and that after living many years abroad, he settled at Antrim : That he married Mary Hamilton of Bangor, by whom he had one son, named John, and two daughters; and that he died at Templepatrick, 19th April, 1712, and was buried at Newtown: That Mr Livingston, an old friend of the family, wrote the inscription to his memory which was on the tombstone at Newtown-Ards, and that Mr Littleton's copy of it was known in 1765: That the said John Alexander of Antrim had encouraged the taste of his son for the ministry of the Church of Scotland, and that the said son, who was the Rev. John Alexander, died at Dublin, Ist November, 1743.
With reference to the evidence by which these facts can be instructed, the defender has to submit the following statement:
1. That, of this date, a paper packet, addressed to Messrs De Porquet and Cooper, booksellers, April 21, 1837. ll, Tavistock Street, Covent Garden, London, who are employed by the defender as his publishers, was received by them by the twopenny post, accompanied by a card in the following terms : -“ Mrs Innes Smyth's compliments to Messrs De Porquet and Co. She had fully intended calling
April 22. 1837.
in Tavistock Street when she arrived in town yesterday from Staffordshire; but another commission she had to execute having prevented her, she is induced to send the enclosed packet to them by the twopenny post, with her particular request that they will forward it instantly to the Earl of Stirling, or any member of his Lordship's family whose residence may be known to them. HACKNEY, April 19th.”
2. That Messrs De Porquet and Co., on reteipt of this parcel, forwarded it to one of the defender's sons then in London, who, in the defender's absence, resolved to have it opened in the presence of a notary-public: That it was accordingly
opened in presence of a notary, of this date, and
was found to .contain a parchment cover or packet, sealed with three seals, and enclosed in an envelope, containing the note, No. I. of the Appendix.
3. That this parchment cover or packet had the following marking on the outside :
66 Some of
Family Papers.” That it was opened in presence of Thomas Blake, Esq. proctor of Doctors Commons, and other witnesses, and was found to contain the five documents, Nos. II. III. IV. V. VI. of the Appendix.
4. That the above-mentioned marking on the outside of the parchment packet is in the handwriting of the defender's late father, Mr Humphrys, and that the pedigree or genealogical tree, No. II. is supposed to have been reduced and written by Thomas Campbell.
5. That the documents, Nos. III. and V. are letters from Dr Benjamin Alexander, son of the Rev. John Alexander, who died at Dublin in 1743, to his brother, the Rev. John Alexander, Birmingham, and to his mother, and that they are in his handwriting, as can be easily instructed by other letters written by him: That the document, No. IV. is a letter from Mr A. E. Baillie to the Rev. John Alexander, Birmingham, bearing that he had attended the funeral of Mr Alexander's grandfather, (Mr John Alexander of Antrim,) and containing other information connected with the family. The defender has hitherto been unable to discover the history of Mr Baillie, the writer of this letter. There is, however, a Mr Baillie referred to as a friend of the family, in some of the correspondence about this period.