Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 WITNESS.
Subject_3 Objection of Partial Counsel.

Alexander Maclatchie
v.
Mary Brand

Date: 27 November 1771

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[Faculty Collection, V. 334; Dictionary, 16, 776.]

In a reduction on the head of deathbed, the defender cited Archibald Malcolm, town-clerk of Dumfries, the writer of the deed, and an instrumentary witness to it. The pursuer Objected,—That Malcolm could not be received as a witness, for he had acted as doer for the defender,—had suggested what questions were fit to be put to the witnesses, and had informed Mary Brand's doer in Edinburgh, what evidence he himself could give. His evidence was taken to lie in relentis; and the question ensued, whether the deposition of Malcolm should be opened and made a part of the state?

Auchinleck. I have always thought that, as we must judge from the testimonies of witnesses, it is necessary that witnesses should be disinterested: the giving partial counsel is a strong objection, and here strongly proved.

Monboddo. The defender has done great injury to her cause by employing Malcolm as her agent; for the opposition made to the receiving his evidence shows that it is material for the defender.

Pitfour. The judgment in the House of Lords, in Dickie's case, did not mean to impugn the general principle: there the evidence of the witness was absolutely necessary for proving the execution of the deed.

Kaimes. I should have had great difficulty in admitting Malcolm, even if he had not acted as agent, for he is under the necessity of supporting the deed, in order to support his own good name.

Hailes. The last reason moves me not: It is established in practice, that they who assist ministerially in the execution of a deed, may be examined as to the circumstances attending its execution: this happened in the case of Mrs Trotter, and many others. I think, however, that the evidence of Malcolm cannot be received. If one acts with propriety in the character of an agent or of a witness, it is enough. No one is called to act in both characters. Malcolm was an agent as long as he could. When he found that his evidence, as a witness, was necessary or fit, he ceased to be an agent; at least he declined acting openly in that character, and observed that it was not right that he should be much seen: This is saying, in other words, as long as I can, I will draw the emoluments of an agent, and, when I can do that no longer, I will change my character, and become an excellent witness. If the defender suffers by losing Malcolm's evidence by his own fault, she may insist against him for damages, as she may be advised.

Justice-Clerk. It would be dangerous to hold that instrumentary witnesses ought to be set aside, because an objection is moved to the fairness of the deed. I am clear that Malcolm cannot be received, for he has given partial counsel. Here a man, bred to the law, is conscious that he is doing an act contrary to law: we therefore judge against Malcolm according to his own opinion.

President. The only plea is, that he is a necessary witness; that is not good, because the defender made him necessary by having the deed executed privately. The defender has cast Malcolm, by using him as an agent. Were it not for this, I would not cast him. The objection, however, of his share in the transaction might go to his credibility. I hope that Malcolm has not been urged by partial counsel: If he has, it will be odd; but, as his evidence will remain for ever unknown, we have no concern in this.

On the 27th November 1771, “The Lords sustained the objection, and appointed the examination of Malcolm to be cancelled.”

N.B.—This altered on appeal, 22d March 1771, without law or necessity.

Act. J. M'Laurin. Alt. H. Dundas.