Scottish Court of Session Decisions

This an action of suspension and interdict at the instance of Duncan Macintyre, doctor of medicine, against Donald Macraild, surgeon, and is brought for the purpose of enforcing an alleged agreement by the latter to refrain from practising within certain limits. The complainer prays the Court “to interdict, prohibit, and discharge the respondent from practising medicine or surgery at the slate quarries of South Ballachulish, and in the adjacent villages of South Ballachulish, Brecklet, and Carnock, where the workmen at the said quarries reside, and from otherwise interfering with the professional practice of the complainer and his assistant, William Willoughby Cole Burton, member of the Royal College of Surgeons of London, at the said quarries and in the said villages.”

The agreement sought to be enforced is contained in an obligatory document produced in process, bearing date at Fort-William, 28th November 1864, and said to be written and subscribed by the respondent Mr Macraild.

The note of suspension and interdict made distinct reference to this document. It set forth expressly in its fifth statement that the respondent, “of this date (November 28, 1864), wrote with his own band and signed the obligation herewith produced.” And the obligation was accordingly produced with the note of suspension in the Bill Chamber.

Answers were given in for the respondent to the note of suspension, and the following is the answer to the above-mentioned fifth statement:—“Admitted only that, at the request of the complainer, who represented to the respondent that he was apprehensive that the workmen might wish to have the respondent as their sole doctor, the respondent granted the obligation founded on, and which is referred to. It was the composition of the complainer, though written over by the respondent. Quoad ultra denied.”

In a separate statement of facts made on his own part, the respondent again said (statement 5), “The respondent thereupon wrote and signed the obligation founded on, which was prepared by the complainer.”

The Lord Ordinary having passed the note and granted interim interdict, the respondent reclaimed to the Lords of the First Division, who confirmed the Lord Ordinary's interlocutor. The discussion turned throughout on the terms of the document admittedly granted by the respondent.

The case having come into the Outer House on the passed note, a record was made up by a revisal of the reasons of suspension and answers as these were presented in the Bill Chamber. In his revised answers the respondent made the following statement:—“This pretended obligation is a forged document, and was not written or signed by the respondent, who never knew or heard of its existence till it was produced in the suspension and interdict, and was not aware of its contents till the proceedings were at avizandum in the Inner House. The respondent never wrote or signed any obligation, save that referred to in article 6. … With reference to the statement made by the suspender at adjustment, that the respondent, in debating the case before the Lord Ordinary and the Inner House, admitted the genuineness of the document now alleged to be forged, it is explained that the document was

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never shown nor its terms in any way made known to him by his agent or any other party till after the case had been taken to avizandum by the Inner House.” And he pleaded, “The foresaid pretended document, of date 28th November 1864, on which the present note of suspension and interdict is founded, not having been written or signed by the respondent, the said note ought to be dismissed.” The complainer pleaded—“The respondent having admitted that he wrote and signed the obligation No. 4 of process, and having conducted the present process upon that footing until the date of lodging his revised answers, he is barred from pleading that it is a forgery.”

The Lord Ordinary (Kinloch) having heard parties, reported the cause, observing in his note:—“In this record the respondent has now inserted the averment that the document so long admitted by him to be genuine, and on the effect of which parties had been at issue as on the only controversy between them, is a forged document. He does not say when, how, or by whom it was forged. He does not present the slightest prima facie evidence of the allegation—not even producing genuine specimens of his handwriting. He simply makes the allegation. He does not dispute that he signed a writing, but he says it was another writing, different in its terms from that produced. Of this alleged other writing, he does not give any prima facie evidence. He produces no copy or draft either of the one writing or the other, though his averment is that the complainer furnished him with the terms of the document he was to sign. With reference to his own previous statements, his whole explanation consists in saying (statement 11), ‘that the document was never shown nor its terms in any way made known to him by his agent, or any other party, till after the case had been taken to avizandum by the Inner House.’

“On this allegation of forgery, the respondent now contends that he is entitled to take his stand. And not only so; but he further contends that the document not being a probative document, but only bearing to be holograph, he is entitled to throw on the complainer the onus of proving it to be genuine.

It appears to the Lord Ordinary to be a matter of the gravest doubt whether the respondent is now entitled to deny the genuineness of this document. He has admitted its authenticity to the Court with a formality which could scarcely have been exceeded by his subscribing a formal attestation attached to the document. It would be of perilous precedent if, after taking the opinion of the Court on the terms of a written instrument, and finding it unfavourable, an unscrupulous litigant were allowed summarily to turn round and allege that the instrument was forged. In the view of the Lord Ordinary the matter is one which touches as well on the respect due to the Court as on the sound administration of justice. Its importance is at once so great and so peculiar that the Lord Ordinary has thought it better to bring it before the cognisance of the Inner House than to deal with it at his own hand.

“W. P.”

N. C. Campbell was heard for the complainer.

W. N. M'Laren for the respondents.

At advising,