Scottish Court of Session Decisions

This was an appeal from the Sheriff Court of Forfarshire in an action at the instance of Alexander Tosh, curator bonis to Miss Jane Ogilvy, an inmate of the Royal Lunatic Asylum, Montrose, against James Ogilvy, her brother, for payment of the sum of £296, uplifted and received by the defender for the said Jane Ogilvy from the branch of the National Bank of Scotland at Kirriemuir on or about 31st July 1868. This sum of £296 was contained in a deposit receipt in the name of the said Jane Ogilvy, and it was alleged that the defender, who was her brother, having caused or procured her signature or indorsation to said deposit receipt, had uplifted the money from the bank, and had failed to pay or account for it to the said Jane Ogilvy. The defence was that the money so uplifted by the defender had been actually paid by him to Miss Ogilvy. On 18th January 1872, the Sheriff-Substitute ( Robertson) pronounced an interlocutor by which the defender was assoilzied from the conclusions of the summons, which judgment was, on 28th March 1872, adhered to by the Sheriff ( Maitland Heriot).

The pursuer appealed.

The case was heard in October 1872, and their Lordships appointed the defender and his wife, who had given evidence in course of the proof before the Sheriff, to be examined in presence of the Court. Thereafter, in respect that hopes were entertained of the convalescence of Mies Ogilvy, consideration of the case was superseded. On 21st October 1873 the pursuer boxed a note craving the Court to resume consideration of the case and grant commission to examine Miss Ogilvy.

Counsel for the pursuer produced the following certificate:—

“Montrose Royal Lunatic Asylum,

18 th October 1873.

I hereby certify that the present condition of Jane Ogilvy is such that, though considerably improved, the excitement of going to Edinburgh and being examined in Court would probably render her evidence of little value; still, if she were examined in the Asylum, her statements might to a considerable extent be relied on.

(Signed) James C. Howden, M.D.”

In respect of this certificate he moved the Court to grant a Commission to take the deposition of Miss Ogilvy.

Counsel for the defender contended that even if Dr Howden's certificate were to be held as establishing Miss Ogilvy's sanity, or at least her fitness to be examined, what was proposed was to take her deposition as to what had occurred when, if the pursuer's case had any foundation, Miss Ogilvy was actually insane. Further, that the certificate by no means established that the present condition of Miss Ogilvy was such that evidence of any value could be expected from her.

At advising—