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Scottish Jury Court Reports |
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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Scott v. Gray. [1826] ScotJCR 4_Murray_61 (25 March 1826) URL: http://www.bailii.org/scot/cases/ScotJCR/1826/4_Murray_61.html Cite as: [1826] ScotJCR 4_Murray_61 |
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Page: 61↓
(1826) 4 Murray 61
CASES TRIED IN THE JURY COURT, AT EDINBURGH, AND ON THE CIRCUIT, FROM DECEMBER 1825 TO JULY 1828.
No. 9
PRESENT,
Finding for the defender on a question of incapacity, facility, and circumvention.
Reduction of two deeds on the ground of imbecility, facility, and incapacity in the maker, or at least facility and circumvention.
Whether the deeds were not, or either of them was not, the deeds or deed of the deceased John Scott, merchant in Montrose.
Page: 62↓
Williamson v. Fife, n. r. Bell on Testing Deeds 142 and 220. Gillespie v. Gillespie 11th Feb. 1817. Clark v. Spence, 3 Mur. Rep. 450.
Skene opened the case for the pursuer, and stated, The maker of the deed was reduced to a state of total imbecility, and was incapable of understanding the deeds. His brother and other near relations were excluded from him, which, I submit to the the Court, takes off the presumption, which would otherwise have been strong, that the deeds were genuine. Indeed, where there is great facility, and the granter is in the power of the party interested, that has been held sufficient to cut down the deed.
Cockburn, for the defender, proposed, That the pursuer should call the writer of the deed, and the medical attendant as witnesses, and he would not address the Jury; but this not being done, he said, Were this to be tried by the Judges, I would only say the deeds are regular, and prove themselves, and the pursuer has not called the writer of the deeds, or the medical attendants, who ought to have been called. But the pursuer thinks he will obtain a verdict from the inexperience of the jury, by calling witnesses from the lower ranks, whose opinion is always much affected by the bodily appearance.
To entitle a party to read a deposition taken to lie in retentis, the inability of the witness to attend the trial, must be proved on oath.
A deposition of the medical attendant was tendered in evidence, and a certificate produced to show that from illness he could not attend.
Page: 63↓
Jeffrey.—This deposition ought not to be received, as we have a certificate that the witness could attend.
Cockburn.—I admit the danger of receiving depositions, and that it is possible to move this witness; but he may die by the way. A medical certificate on soul and conscience is held equal to an oath.
Act Sed. 29th Nov. 1825, § 28.
Page: 64↓
The first piece of evidence tendered for a defender being rejected, his counsel did not produce any other, and the pursuer had no reply.
This being rejected, Mr Cockburn declined leading evidence, which Mr Jeffrey said he thought not quite correct, but did not insist in having a reply.
The pursuer does not say the deeds were not signed by Scott, or that they are forgeries, but that the granter was in a state of mental incapacity, and that there was a fraudulent conspiracy on the part of those interested
Page: 65↓
The question is, Whether the pursuer has made out his case? The deeds on the table are regularly signed, and have all the authority legal solemnities can give them. They were prepared by respectable men of business, who for years had been the confidential agents of the party, and if a fraud had been intended these are the last persons who would have been applied to. You have had proof of his acting as a sensible man in reference to the execution of the deeds, and must contrast that with the evidence brought of his incapacity. He had a stroke of palsy, which does not always, though it may generally, impair the mind, and he sent for the physician and writer at the same time, which is just the prudent step for a man to take when he has improperly delayed to make his settlement. This is not like making a bargain, where he has to combat another mind; all that is necessary is, that his mind is sound, and that he can clearly express the individual he means to favour. You must judge of the evidence; but it appears to me that there is nothing to shake the testimony of the writer, who stated that
Page: 66↓
If you think there is no sufficient proof of incapacity, or fraudulent conspiracy, then you will find for the defender; but if you think there is evidence of fraudulent conspiracy and incapacity, or of his being totally bereft of mind, then you will find for the pursuer.
Verdict for the defenders.
Counsel:
Jeffrey,
Skene, and Macallan, for the Pursuer.
Cockburn and Jamieson, for the Defender.
Solicitors: (Agents, Ainslie and Macallan, w. s., and James Burness. s. s. c.)
