Scottish Court of Session Decisions

The following issue in this case was sent to a jury at the last jury sittings:—

“It being admitted that on or about the 14th day of January 1859 the defender received from the said deceased Ann Murray a deposit-receipt for £320, granted by the agent of the Union Bank of Scotland at Banff, dated 5th February 1858, endorsed blank by the said Ann Murray:

Whether the defender uplifted from the branch of the Union Bank of Scotland at Banff the sum of £320, contained in the said deposit receipt, with £6, 1s. 2d. of interest thereon; and is resting owing the said sums of £320 and £6, 1s. 2d., with interest, since 14th January 1859, to the pursuer, or any part of these sums?”

The jury unanimously returned a verdict for the pursuer.

The defender moved for a rule to show cause why a new trial should not be granted, and his motion was supported on two grounds. He said (1) that the verdict was contrary to evidence; and (2) that since the trial he had ascertained that a letter had been written by his agent to the agent of the pursuers, which would have had a most important effect on the minds of the jury. The Court refused the motion on both grounds. The defence which the defender undertook to establish was that he had paid over the money to the deceased Miss Murray; and if that defence had been proved, it was conclusive. But he attempted to prove it by the evidence of himself, his brother, and his two sisters. There was some other evidence, but it was, independent of the evidence of the defender and his brother and sisters, altogether insufficient to establish the defence. Prior to the year 1853, the evidence of the defender himself could not have been admitted, and prior to 1840, that of his brother and sisters was in the same situation. When these relaxations in the law of evidence were proposed to be introduced, it was objected that they would lead to the increase of perjury. But the answer to that argument was that the jury would always have an opportunity of seeing the witnesses, and detecting perjury when it was committed. The matter on which the jury in this case had to form an opinion was the credibility of the defender and his witnesses, and they formed the opinion that the evidence was not credible, because, if true, it undoubtedly established the defence. It was not for the Court to usurp the functions of the jury by reviewing their verdict in regard to a matter so peculiarly within their province. In reference to the other ground, instrumentum noviter repertum was a good ground for asking a new trial. But there were two reasons for not sustaining it in this case. In the first place, the document was not material as evidence. The utmost that can be said of it is that if it had been before the jury it would have disarmed an observation which might have been made on its absence. But, in the second place, the letter is not instrumentum noviter repertum. It is laid before us as it appears in the letter-book of the agent of the defender himself, and must have been known to exist at the time of the trial by the defender or his advisers.