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Scottish Jury Court Reports |
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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Setton v. Setton's Trustees. [1816] ScotJCR 1_Murray_9 (24 February 1816) URL: http://www.bailii.org/scot/cases/ScotJCR/1816/1_Murray_9.html Cite as: [1816] ScotJCR 1_Murray_9 |
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Page: 9↓
(1816) 1 Murray 9
CASES TRIED IN THE JURY COURT.
THE JURY COURT.
No. 2
Present, The Three Lords Commissioners.
The subscription of an instrumentary witness having been written by a third party, while the witness merely touched the pen, found not a genuine subscription.
This was a reduction and improbation of a trust-disposition and deed of settlement by the late Adam Setton, of the Glasgow and Dumbarton Glasswork.
Several grounds of reduction were stated; the fifth was, that the name of Mary Johnston, one of the instrumentary witnesses, was a forgery. Lord Gillies, Ordinary, appointed parties to give in articles improbatory and approbatory, in order to a proof of that ground; reserving consideration of the others, and of the pursuer's title to pursue. When given in, his Lordship held these as a condescendence and answers; and after reporting to the Court, approved of the following
“Whether the name of Mary Johnston, subscribed as an instrumentary witness to a writing produced in this cause, and entitled, Disposition and Deed of Settlement by Mr Adam Setton; and purporting to have been executed at Glasgow, on the 4th day of
Page: 10↓
Maclean, one of the instrumentary witnesses, was a clerk in the glasswork, and it appeared from his deposition, that, after subscribing his own name as one witness to the deed, Mary Johnston, Setton's servant, was called in as the other. As she was not in the habit of writing, it appeared from his deposition that he wrote the words “Mary Johnston, witness,” while she touched the pen in token of approbation.
Mary Johnston, when called as a witness at the trial, stated, that, with assistance, she signed the deed in question, but did not recollect whose hand was next the paper when she signed. She did so to please Mr S. then very ill, and Maclean said none could object as she did not.
Being called on to write her name in Court, it was objected that she might not be able to write in such a situation; but the Lord Chief Commissioner said, this is not a valid reason for excluding the experiment, but may be matter of observation for the counsel to the jury.
It is competent, in a Reduction Improbation, to read to the Jury the deposition of a witness examined on commission.
The pursuer offered in evidence the deposition
Page: 11↓
Stair, IV. 20, 22.
Form of Pro. Court of Ses. I. 302.
Hume, I. 232.
Moncreiff objected. It is in all cases a delicate matter to lay a proof taken on commission before a jury. In a reduction and improbation, it is incompetent. The Court of Session would not have granted a commission, as the action contains conclusions of a criminal nature. The answers of the witness may subject him to a criminal prosecution. The pursuer ought to delay his case till the witness recovers.
Page: 12↓
The objection, that a man is not bound to criminate himself, is personal to the witness. The commissioner would inform him on this subject. It is an objection to his evidence being taken, if he makes the objection, not to its being read, if it is given.
The examination of witnesses in præsentia must, I conceive, in the other Court, be regulated by circumstances, and I have no doubt that they would grant a commission if a certificate was produced to them, stating a witness to be unable to attend, and his illness to be of a permanent nature.
Crosobie and Picken, v. Crosbie, Nov. 30, 1749. M. 16814. Pringle v. Keill, Feb, 1735, M. 16110. Robertson v. Young, Dec. 20, 1744. Falconer v. Arbuthnot and Others, Jan. 9. 1751, M. 16817.
Cranstoun, in his opening speech for the
Page: 13↓
1681, c. 5.
Moncreiff argued, for the defender, That the cases mentioned on the other side were decided on the principle that the law had pointed out a mode of rendering a deed valid, when the party could not write. The question here is not whether the deed is valid, but, is this Mary Johnston's subscription? and she swears that she wrote it with assistance. He then mentioned a number of instances in which the degree of assistance would not render the writing invalid.
Page: 14↓
Mary Johnston is a respectable and honest witness. She says she had long given over writing her name, and the other witness in substance gives the same account. If you compare Maclean's subscription with the words Mary Johnston, you will find they are written by the same hand, with the difference occasioned by her touching the pen at the time he wrote her name. If you compare this with what she wrote in Court, you can only come to one conclusion. She does not recollect how she held the pen, but Maclean swears that he wrote the words, and she touched the pen in token of giving her consent. This is positive testimony, in opposition to her want of recollection, and seems to me to establish the writing to be that of Maclean, and not of Mary Johnston.
The Jury found, “That the subscription Mary Johnston, adhibited to the deed referred to in the issue, is not the true and genuine subscription, and proper hand-writing, of the said Mary Johnston.”
Counsel:
Cranstoun and
Henderson for the Pursuer.
Moncreiff for the Defender.
Solicitors: (Agents, James Smaill and John Thorburn.)
