Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 DEATHBED.
Subject_3 Found sufficient that separate acts of convalesence should be proved, each by one witness.

Agnes Young
v.
Agnes, Margaret, and Elizabeth Scot

Date: 3 July 1773

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[Supp. V. 423.]

Justice-Clerk. The question is, Whether can reconvalescence, by going to market, be held as proved, when one witness swears he saw the party on one market day in the market, and another that he also saw him on another day, and when there are not two concurring witnesses to any one act of appearing in market?” In a case like this there is no cross-questioning of witnesses, and so great room left for mistake, or something worse. Each is a single evidence to a single fact, and this I understand not to be sufficient.

Braxfield. I cannot agree to this doctrine. Here it is of no consequence whether the man was in the market on the one day or the other: we must either hold the evidence good or hold the witnesses to be perjured.

President. Reconvalescence, by going to kirk or market, is held sufficient in law, because such an act is public, at which many witnesses may be present. In some generic crimes one witness is sufficient, as in treason, adultery, &c.; but the general rule is the other way. I do not think that a single witness will be sufficient as to one fact. There is an end of all questions about death-bed, if that is once admitted; for no person endeavouring to support a deed will ever call above one witness, and there will be no check as to that witness.

Kaimes. In generic facts, where things naturally follow one another, there is no occasion for a concurrence of evidence.

Monboddo. Of the same opinion. In such case the evidence becomes circumstantiated.

On the 3d July 1777, “The Lords found reconvalescence proved;” adhering to Lord Covington's interlocutor.

Act. R. Blair. Alt. A. Ogilvie.

Diss. Justice-Clerk, Kaimes, Gardenston, Auchinleck, Hailes, President.