John Sime and his Attorneys, v. The Children of George Simpson
Date: 9 February 1793 Case No. No. 206.
Objection to a witness that he is a party in the process, as attorney for the pursuer, found to be removed by his obtaining a bond relieving him from the consequences of the action.
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George Simpson having purchased some houses from the Earl of Findlater, John Sime, his son-in-law, advanced him £200, to enable him to pay the price, for which George Simpson granted a missive, obliging himself to give an heritable security over the subjects, as soon as his titles to them should be made up. William Reid, Town-clerk of Banff, who wrote the missive, and the Earl's factor, seem to have been the only persons except Simpson's own family who knew any thing of this transaction. Soon after the missive was granted, John Sime went abroad, and left with Mr. Reid the charge of getting his heritable security made out.
George Simpson died without granting the heritable security, and Sime wishing to recover his money, named Reid and others his attorneys, who brought an action against the children of George Simpson, as representing their father.
The original missive was in the possession of one of the defenders, who said she had found it among her father's papers, and contended, that it had either never been delivered, or had been given up upon payment. Sime, on the other hand, alleged, that she held it, as depositary for him.
A proof having been allowed, the pursuers proposed to examine Mr. Reid. This being opposed, the Lord Ordinary, “in respect of his being one of the attorneys for the pursuer, and by that means materially interested in the issue of the cause, in hoc statu sustained” the objection.
Upon which the agent of the pursuers granted and produced in process an obligation, binding himself and his heirs to free Mr. Reid of every claim which might arise against him, in consequence of his being attorney in the action.
The defenders still
Objected: Mr. Reid is a pursuer in this action, and is nevertheless insisting that his own oath should be taken; but as his interest in the issue of the cause was originally an unsurmountable objection to his being admitted, (Erskine, B. 4. Tit. 2. § 25.) it would be dangerous, in point of precedent, to give the bond produced the effect of removing it. Vide supra h. t.
Answered: Mr. Reid is merely a nominal pursuer. His interest in the issue of the cause, which was at first but contingent and remote, the principal pursuer being undoubtedly solvent, is now entirely done away.
Besides necessary witnesses, like the present, have in many cases been admitted, even where they had a real interest; 12th July 1743, Lindsays against Ramsay, No. 168. p. 16746; 19th December 1786, Scott against Caverhill, No. 204. p. 16779. and other cases supra h. t.
The Lord Ordinary allowed Mr. Reid to be examined, reserving all objections to his credibility.
Upon advising a reclaiming petition and answers, the Court “adhered.”
Lord Ordinary Justice-Clerk.Act. M. Ross.Act. Honyman.Clerk, Gordon.
Fac. Coll. No. 26. p. 53.
