Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By James Burnett,Lord Monoboddo .

Archibald Trotter
v.
Mrs Cairns

Date: 2 July 1754

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A Woman made a testament in favour of the said Archibald Trotter, which she afterwards revoked, and in the same deed made a second in favour of Mrs Cairns, her sister.

It was Objected to this second testament by Archibald, 1mo, That the woman, when she executed this last testament, had not the perfect use of her senses; 2do, That it did not appear she had given any orders to make this second testament; 3tio, Esto that she had given such orders, they were forced from her by urgent importunity and solicitation, particularly by the importunity of Thomas Trotter, her brother, who guarded her and kept every body from having access to her while this second testament was a-making, except such as he thought proper. As the proof with respect to these allegations was not clear on either side, it was moved from the Bench that Thomas Trotter the brother, who, it was proved, had given the order to the writer to make out the testament, should be examined whether he received any such orders from the defunct, and with respect to other facts relating to the cause; and it was proposed to do this ex officio et ad informandam conscientiam judicis.

It was Objected by Archibald Trotter,—That Thomas Trotter was in every respect an exceptionable witness; first, On account of his near relationship to the executrix; 2do, Because he was the main agent in the business of the second testament; 3tio, Because he could not deny that he had got orders from the defunct to make out the second testament without accusing himself of a crime; and it was said that, if such a witness was to be examined under any pretence, there was an end to all objections to witnesses. On the other hand it was said that he was not to be examined as a witness whom the Judge was to believe, whatever he said, but rather as a party, whom the Judge was to believe if he gave evidence against himself, but not if he gave evidence for himself, in the same manner as a party is examined in a trial of forgery; that it belonged to the office of a judge to take every method to get light in any affair, whether by the examination of witnesses, parties, or those connected with parties, giving to every one such a degree of credibility as the law has allowed them.

The Lords allowed him to be examined, by a division of six to five. Dissent. Elchies, Kaimes, Drummore.