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The pursuer having brought a reduction of a deed, executed by the defender's husband upon the head of incapacity, the defender proposed to examine Archibald Malcolm writer in Dumfries, the writer of the deed, and an instrumentary witness, which was objected to by the pursuer, as Malcolm had been the defender's agent in the cause from its commencement down to the taking of the proof; had corresponded with the defender's agent in Edinburgh; and had given partial counsel throughout, by suggesting what occurred to him as material, searching for and transmitting the proper writings to Edinburgh, and by procuring information as to proper witnesses, &c.
These facts were partly proved by a letter from the defender's agent in Edinburgh; which, to a certain extent, admitted that Malcolm was employed in conducting the cause, and were farther offered to be proved by letters from Malcolm in the agent's possession.
The defender admitted, That, in the commencement of the cause, Malcolm had corresponded with her agent in Edinburgh, and had transmitted to him the information with which she had furnished him; but that this correspondence had been entirely discontinued. That, in the present case, he was a necessary witness, being almost the only person who could explain in what manner the deed had been executed, from whom he had received his instructions, and whether the defunct seemed perfectly to understand the import of the deed, and what he was doing, 21st November 1749, Earl of March against Sawyer, No. 180. p. 16757.
The deposition had been taken and sealed up; but the Court were unanimous in refusing to allow it to be opened and made a part of the proof, grounding their opinion upon the objection of partial counsel given in the cause.
Lord Ordinary, Gardenstone.For Maclatchie, Lockhart, Maclaurin, A. Ferguson.Clerk, Campbell.For Brand, Sol. H. Dundas Macqueen, Alercrombie.
Fac. Coll. No. 112. p. 334.
1773. March 22.
*** This judgment was reversed upon appeal, and the evidence of Malcolm allowed to be received.
