Scottish Court of Session Decisions

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Cite as: [1835] CA 13_323

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SCOTTISH_Shaw_Court_of_Session

Page: 323↓

Smith

v.

Mackay. No. 104.

Court of Session

1st Division

Jan. 27 1835

Ld. Cringletie, Jury Cause, Lord Gillies,

David Smith, Pursuer.— D. F. Hope— Russell. Mary Mackay and Others, Defenders.— Skene— Patterson.

Subject_Proof—Bankruptcy—Process—Bill of Exceptions—Expenses.—

1. Held, that the copy of the act of sequestration engrossed in the statutory duplicate of the Sederunt-book, is not evidence of the date of the sequestration; but that the minutes of procedure under the sequestration are evidence of the subsistence of a sequestration at their respective dates. 2. The holograph letter of a party, though not probative of its own date, is probative against him of the tenor of the statement therein set forth, therefore is admissible evidence. 3. Competent for a judge who presided at a jury trial, to sign a bill of exceptions, notwithstanding his having resigned his judicial office before the bill was prepared for signature. 4. A party who gained three out of eight issues found entitled to one-half of the expenses of a jury trial.

The estates of John Mackay, vintner in Airdrie, were sequestrated on 17th April, 1827. Several transactions subsequently took place between him and his brother, Ewen Mackay, which, as they alleged, resulted in Ewen's acquisition of a brewery, &c., under a conveyance ex facie absolute, but in reality in trust, to the extent of one-half, for the children of John Mackay, in respect of part of the price being paid by John Mackay. In May, 1830, Ewen Mackay conveyed his whole heritage to a trustee for behoof of his creditors, and the trustee, in May, 1831, sold and conveyed the brewery to David Smith, Ironfounder in Airdrie. Ewen Mackay granted a disposition, bearing to be dated 13th August, 1830, of one-half of the brewery to the children of John Mackay, on the narrative of the alleged trust above mentioned. Smith raised a reduction of the disposition, and founded on the acts 1621, c. 18, 1696, c. 5, fraud at common law, and also on the use of inhibition. Issues were taken applicable to these points; and at the jury trial Smith tendered, inter alia, a duplicate of the “Sederunt-book of the sequestration of the estate of John Mackay, containing copy ‘of the act sequestrating the estate and effects of John Mackay, dated 17th April, 1827, and containing copy of the roup-roll, page 64 of said book, and dated 24th May, 1827; But to this the counsel for the defenders objected, that it was not evidence of the date of the sequestration,—the best and only competent evidence being the act of sequestration, or the deliverance of the Court on the petition for sequestration. Lord Cringletie (the presiding Judge) overruled this objection, and allowed the document to be received as evidence; whereupon the counsel for the defenders excepted.

At discussing the exception, ^* Smith pleaded that he had not produced the Sederunt-book for the purpose of proving that the date of John Mackay's sequestration was the 17th of April, 1827, but merely to prove that there was a sequestration of his estates prior to 10th October, 1829, and current at that date. The Sederunt-book contained regular minutes of all the meetings of creditors and other pro-

_________________ Footnote _________________

^* Before the bill of exceptions was signed by Lord Cringletie, who had presided at the trial, his Lordship had resigned his office of judge. A difficulty occurred. to the Court, whether it was still competent for his Lordship to sign the bill, and the Lord President, at the desire of the other judges, requested information from Lord Chief-Justice Tindall. In a written communication from the Lord Chief-Justice, his Lordship's opinion was thus stated.

“I conceive that a judge may, with the strictest propriety, put his seal to a bill of exceptions after he has resigned his office, such exceptions being the same in substance as were made at the trial of the cause. Under these circumstances, he is not exercising any judicial function upon a question under discussion before him; he is merely performing the formal part of testifying, by putting his seal thereto, that the bill of exceptions contains a faithful account of the evidence given at the trial, and of the exception taken to his own direction or ruling on that occasion. And it appears to me, that such an act may be well done ‘nunc pro tunc;’ for it is obvious that the truth of the statement of what took place at the trial cannot be in any way affected by the intervening resignation of the judge. What would be the effect of a judge dying after the trial, but before he put his seal to a bill of exceptions I cannot take upon me to say,” &c.

ceedings under the sequestration, and, among other things, the examinations of the bankrupt; and it was expressly declared by the Bankrupt statute, that extracts from the Sederunt-book should be good evidence, so that the production of the Sederunt-book itself must be competent to prove the fact of a subsisting sequestration, as at the date of these several proceedings held under it.

The Court disallowed the exception. Their Lordships unanimously considered that the copy of the act of sequestration prefixed to the Sederunt-book was not competent evidence to prove that sequestration took place on 17th April, 1827, but that the regular minutes of the meetings of creditors, and the examinations of the bankrupt, contained in the Sederunt-book, were sufficient to prove the fact of a sequestration, and of its subsistence on 10th October, 1829, which was the object for which the pursuer had tendered the Sederunt-book.

Another exception was taken by the defenders to the admissibility of a holograph letter of Ewen Mackay, defender, dated 10th October, 1829, in respect that the letter, though holograph of Ewen Mackay, was not of itself probative, and could not be received as evidence in this cause. But Lord Cringletie overruled this objection, and allowed the letter to be received in evidence.

At discussing the exception, the pursuer pleaded that though a holograph letter did not prove its own date, the letter in question was not tendered to prove its date, but to show that the defender, Ewen Mackay, had made a written statement of the tenor set forth in the letter. For that purpose his holograph writing was competent.

The Court disallowed the exception.

Lord Gillies observed, that the defender had taken an unqualified objection to the admissibility of the defender's holograph writing to any effect whatever. Such objection was clearly unfounded, as the letter was competent evidence to many effects, and, in particular, to that effect for which it had been tendered.

The Court refused the bill of exceptions; and, in the circumstances, found the pursuer—who had gained three issues out of eight—entitled to expenses, modified to one-half of their amount.

Solicitors: Wotherspoon and Mack, W.S.— John Cullen, W.S.—Agents.

SS 13 SS 323 1835