Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by JAMES BURNETT, LORD MONBODDO.

Duke of Hamilton, &c
v.
Mr Douglas

Date: 8 August 1764

Click here to view a pdf copy of this documet : PDF Copy

In Mr Douglas's service as heir to the late Duke of Douglas, there were produced by Mr Lindsay, town-clerk of Edinburgh, who was called as a witness for Mr Douglas in his service, certain letters said to be written by one Pierre La Mar, a manmidwife, to Sir John Stewart, concerning Mr Douglas's birth. The Duke of Hamilton raised a reduction of the service, and when this process was going on, he insisted in an improbation of these letters, and craved that Mr Douglas and his curators might be ordained to abide by them sub periculo falsi: but the Lords unanimously found that they were not obliged to abide by them in that way; and therefore they dismissed the improbation as incompetent, reserving to the Duke of Hamilton to prove these letters forged in the process of reduction. Lord Coalston thought that the improbation was competent, but that the defenders might abide by these letters qualificate. The President, on the other hand, thought that there could be no abiding by in that way, but the defenders must either give up the letters altogether, or abide by them simpliciter, sub periculo falsi. The principle of law in this case seems to be, that an improbation is truly a criminal process, though carried on in the civil court, founded upon the presumption that a person who has in his custody, and produces a forged deed, is the forger; but if the deed is produced, not by the party, but by a witness in a cause, that presumption ceases with respect to the party, and there can be no process of improbation against him, but only against the witness who produces the deed; though in the cause with the party the deed may be proved to be forged in order to take off the evidence arising from it