Scottish Court of Session Decisions

Observations ( per Lord President) as to the rules which govern the admissibility of hearsay evidence of dead persons in questions of pedigree.

This was a Bill of Exceptions against the ruling of the Lord President, who was the presiding Judge in the trial by jury of conjoined petitions for special service to Christina Cockburn Ross of Shandwick.

There were three sets of claimants—First, Mrs Mackintosh; second, Mrs Macpherson and Andrew Ross Robertson, who claimed as heirs-portioners; and third, John Ross Duncan and Andrew Gildart Reid, who also claimed as heirs-portioners.

The circumstances of the case were as follows; —William Ross of Shandwick executed an entail of the Shandwick estates, dated 5th May 1790. He died unmarried in the same year, survived by one sister, whose descendants became extinct upon the death of the said Christina Cockburn Ross, and on that event occurring the succession under the entail opened to the nearest and lawful heirs whatsoever of William Ross. William Ross' father, David Ross, had brothers both older and younger than himself. Mrs Mackintosh claimed to be descended from Walter Ross, the immediate younger brother of David Ross, and it was admitted that if she proved her claim she would be entitled to succeed before either of the other sets of claimants. Mrs Macpherson and Mrs Ross Robertson claimed to be descended from George Ross, the youngest brother of David Ross, and it was admitted that if Mrs Mackintosh failed, and they established their pedigree, they would be preferable to Mr Duncan and Captain Reid, who claimed to be descended from Andrew, an elder brother of David Ross.

The pedigree which Mrs Macpherson and Andrew Ross Robertson had to establish was as follows:—Mrs Macpherson and Andrew Ross Robertson's mother were daughters of George Ross, sometime in the Sutherland Fencibles, and latterly at Lochee, near Dundee. His father was Andrew Ross, who was a small farmer or crofter at Loans of Tullich, in Ross-shire, and this Andrew was a son of George Ross, the youngest brother of the entailer's father. There was no difficulty in proving this pedigree, except in regard to the last link, namely, that Andrew Ross of Tullich was a son of George Ross, the entailer's uncle.

George Ross, the entailer's uncle, died in Gottenburg in 1783, and acording to the Gotten-burg register of deaths he was then sixty-six years and three months old. It was proved that this George Ross went to Gottenburg about the year 1738, and Mrs Macpherson and Andrew Ross Robertson averred that Andrew Ross, the farmer of Tulich, was the offspring of a marriage which George Ross had contracted before going to Gottenburg with a woman called Margaret or Merran Manson.

At the trial the first witness produced for Mrs Macpherson and Andrew Ross Robertson was the former, who stated her pedigree to be as given above, having principally derived her information from her father. It was then proposed to read to the jury the deposition of Alexander Mackenzie, residing at Balintore, in Ross-shire (which had been taken in the course of the cause upon adjusted interrogatories), who by reason of great age and infirmity was unable to attend the trial.

The deposition was in the following terms:—

“ Imprimis, Do you know the parties, petitioners and respondents in the title to these interrogatories named, or any and which of them, and how long have you known them, and any and which of them? Declare the truth and your knowledge herein. Depones—I know John Ross Duncan, whom I saw with his mother at Shand-wick when he was a boy. I know Captain Reid by sight. I know Mrs Jane Ross or Macpherson, and I know Andrew Ross Robertson. I knew the two last all their days. I knew Mrs Macpherson's father when I went to Cromarty, when I was between sixteen and seventeen years of age. I knew Captain Reid since he began to go about Ross-shire some time ago. Mrs Macpherson's father's name was George Ross. He was nicknamed Geodh.

“ Being interrogated in terms of the second of said interrogatories, viz.— Second, What is your age; where were you born, to what trade or business were you brought up? State the different places where you have resided, and for how long in each. Depones—I am eighty-five years of age. I was born at Tullich of Fearn, close by the Loans of Fearn. I was brought up to the trade of cabinet-making and carpentery. I remained at Tullich, my birth place, till I was seventeen years of age. I then went to Cromarty, where I was four or five years. I went to Edinburgh from Cromarty. I was there about a year. I then went to Ferintosh, to Mr Innes, a millwright, where I was five years, and where I

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learned the trade of millwright. I then returned to Fearn, and my father dying I was obliged to take charge of his croft, where I remained until about twenty years ago, when I left for Balintore, where I have resided ever since.

“ Being interrogated in terms of the third of said interrogatories, viz.— Third, What was your father's name; where did he reside; what was his trade or profession; when and where did he die; what was his age when he died? Depones— My father's name was George Mackenzie. He was a farmer at Tullich of Fearn, where he died more than forty years ago. He was fifty-five years of age at the time of his death.

“Being interrogated in terms of the fourth of said interrogatories, viz.— Fourth, What was your mother's maiden name; when and where did she die; how old was she when she died; where was she born? Depones—My mother's maiden name was Flora Ross. She lived a good while after my father's death, but I cannot tell exactly when she died. She died at the farm of Tullich. She was seventy-five years of age when she died. She was born in the Loans of Tullich.

“ Being interrogated in terms of the fifth of said interrogatories, viz.— Fifth, What was the name of your mother's father; where did he reside; when and where did he die; and how old was he when he died? Depones—My mother's father's name was Alexander Ross, farmer, Loans of Tullich. He died on the Loans of Tullich when I would be about six or seven years of age. I cannot say how old he was when he died. He would be a middling old man. I was only a boy then.

“ Being interrogated in terms of the sixth of said interrogatories, viz.— Sixth, Can you name any of the relations of your said grandfather, your mother's father? If so, state who they were. Depones—David Ross, commissary-clerk in Tain, was one. He and my said grandfather were first cousins. David Ross, Mulderg, father of William Ross, bank agent, Tain, was another. He was first cousin to my mother. My father's relations were west, about Dingwall, and I did not know so much about them. I don't mind any other relations on my mother's side.

“Being interrogated in terms of the seventh of said interrogatories, viz.— Seventh, Did you know George Ross, sometime residing at Lochee; when did you first know him, and where did he then reside; what was his trade or occupation? State also any other places where he resided, and any other trade or occupation which he followed to your knowledge. Was he and his family known by any name distinguishing them from the other families of Ross? If so, what was that name, and how did it originate? Depones—I was well acquainted with the said George Ross. I first knew him by face in Cromarty when I was about seventeen years of age. He then lived in Cromarty. He was then a heckler in the Cromarty factory. I do not remember him being in any other place. Before he went to Cromarty I have heard that he was residing at the Loans of Fearn. From that he went away somewhere, I don't know where. Then he came back to Cromarty, and from that to Lochee, where he died. His father died while he was on the Loans. He kept on the croft for a while. I cannot tell any other work he was at except that and the heckling. He and his family were called Geodh. They got the name in this way—There was a loch near their house in the Loan of Tullich, and Cadboll would send his geese in the summer time to Andrew Ross, George's father, to take care of. From that they called him Andrew Geodh, and the family Geoths. I have heard that this George Ross who was at Cromarty was on board a ship for a time. I have heard him say, alluding to this, ‘I was cook there, and would get the best bit for myself.’

“Being interrogated in terms of the eighth of said interrogatories, viz.— Eighth, Was the said George Ross married; what was the maiden name of his wife; had he any children; what were their names? Depones——Yes. George Ross was married, and had a family. I do not remember his wife's name. I remember of his children, — Ann, who was the mother of Andrew Ross Robertson; Jane, who is Mrs M'Pherson. I remember his son Andrew, who was a minister. He was the only son. I remember two other daughters, Christy and Margaret. I suppose that was all.

“Being interrogated in terms of the ninth of said interrogatories, viz.— Ninth, When did you last see the said George Ross; did you then identify him as the same man whom you had known at Tullich, and at the hemp factory at Cromarty? Depones — The last time I saw George Ross was when he came north to Tain. Mr Andrew Ross Robertson was with him. It was in Tain. The first time I was examined in the Shandwick case I identified him as the same man I had known at Tullich and Cromarty.

“Interrogated in terms of the tenth of said interrogatories, viz.— Tenth, Who was the father of the said George Ross of Lochee; was ho married; what was his wife's name; where did he reside, and what was his occupation; had he any other children besides the said George Ross; if so, what were their names? Depones—The father of George Ross was Andrew Ross Geodh. He was married, and had a family. His wife's name was Christy, and she was a midwife. Andrew lived in the east end of the Loans of Tullich, where he had a bit farm. He had, besides George, a son called John, who was not wise enough; another son, Donald, who went on board ship and never came back, and a daughter who went south and was never more heard of. George was the eldest son.

“Being interrogated in terms of the eleventh of said interrogatories, viz.— Eleventh, Did you know the brothers of the said George Ross of Lochee, or any and which of them? If so, state their names, whether they were married, and when and where they died; do you know where they or any of them were buried? State what you know in reference to the interment of the said George's brother John. Depones—The brothers of George Ross were John and Donald. I have seen and knew John. I have never seen Donald. Neither of them were married. John was a foolish man, and lived with Mr Gallie on the Hill of Nigg, where he died. John got very bad justice. He was not buried in the Shandwick burying-ground at Feam, where his father, mother, and grandmother were buried. It was Mr Ross, the minister of Fearn for the time, who put against John being put in the Shandwick burying-ground. Mr Gallie wanted to bury John with his father and mother, and was very angry that he was not so buried. They put

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John out on a plain spot near the chapel in Fearn churchyard. I don't remember anything else about the funeral. I cannot say exactly how long it is since the funeral.

Interrogated in terms of the twelfth of said interrogatories, viz.— Twelfth, Who was the paternal grandfather of the said George Ross of Lochee; what was his occupation; where did he live; did he go abroad; if so, where did he go? Depones—The paternal grandfather of the said George Ross of Lochee was George Ross, who was the uncle of William Ross of Shandwick. He stayed sometime at Tarrel, working there, and was married there, and got one son, and then took into his head to go to Sweden, where he stopped the rest of his days.

“Interrogated in terms of the thirteenth of the said interrogatories, viz.— Thirteenth, Was the said grandfather of George Ross of Lochee married before he went abroad; if so, what was his wife's name; had he any child or children by his said wife, and what was or were the name or names of such child or children; when and where did his wife die? State the grounds of your knowledge. Depones—Yes. The grandfather of George Ross of Lochee was married before he went abroad, and had one son, whom he called Andrew, after his own father Andrew Ross of Shandwick, and this last Andrew, who was Andrew Ross Geodh, called his son George Ross, Lochee,—George after his father George Ross, Tarrel. The wife of the grandfather of George Ross of Lochee was Merran or Margaret Manson. George, who went abroad, had no child but Andrew by his wife Merran. He did not wait long with her. Merran was stopping with her son Andrew on the Loans of Tullich, where Andrew had a bit farm. She died sometime before Andrew, and was buried in the Shandwick burial-ground, where Andrew himself was buried the year before William Ross of Shandwick,—that is, Andrew was buried the year before William Ross of Shandwick. Merran died at Tullich, in her son's house. I knew this by all the neighbours. There was no word about it till William Ross of Shandwick was killed, and there was a great talk about who was the heir of Shandwick. I heard this from many, particularly from John Polson the elder, Hill of Fearn. He died about eleven years ago, and was then, I believe, about eighty-nine years of age. [Also from John Vass, Balintore, who was at William Ross of Shandwick's funeral. John Vass is now dead. He died sometime ago, and was about eighty years of age when he died. John Vass has told me that at the funeral of William Ross, the entailer of Shandwick, he got on a gravestone to get a good view, and saw the coffin taken out of the hearse, and heard Simon Graham, the gravedigger of Fearn, call aloud—‘Where is George Ross, the heir, till he put his friend's head in the grave.’] That was George Ross, Lochee. I have also heard these things from William Ross, farmer, Hill of Fearn, who himself was well acquaint with George Ross, Tarrel. He is also dead a long time ago. Also from Donald Munro, Loans of Tullich, who is also dead a long time ago. And Alexander Hendry, Tullich, who died a long time since—I am sure fifty years since. All these died old men. It was the common talk of the country. These men I have named above I remember myself to have heard speak of these matters. They would often come to my father's house on a winter evening, when I was a boy from ten to thirteen, and they would always have some story to speak about; and I, as young boys are, was very ready to take it up.

Interrogated in terms of the fourteenth of said interrogatories, viz.— Fourteenth, Where was the father of the said George Ross of Lochee buried; where was his wife buried; and where was his mother buried? State the grounds of your knowledge. Depones—The father of the said George Ross of Lochee was buried in the Shandwick chapel at Fearn, and his wife and his mother were buried there also. I stated the grounds of my knowledge of this in my answers to the last interrogatory.

Interrogated in terms of the fifteenth of said interrogatories, viz.— Fifteenth, Was there any relationship between the father of the said George Ross of Lochee and William Ross, the entailer of Shandwick? If so, state what was the relationship. State the grounds of your knowledge. Depones—Andrew Ross, the father of George Ross of Lochee, was the first cousin of William Ross, the entailer of Shandwick. The father of the said Andrew was George, who was brother to David, called Dhai Mhore, the father of William Ross, the entailer. I know this as I know the matter stated in my answer to the thirteenth interrogatory.

Interrogated in terms of the sixteenth of said interrogatories, viz.— Sixteenth, Where was the said William Ross, the entailer, buried? State the grounds of your knowledge. Depones—William Ross, the entailer, was buried in the Shandwick chapel at Fearn beside Andrew, his uncle's son, that is, Andrew Geodh. And William Ross' grave is next the wall. I heard this from the persons named in my answer to the thirteenth interrogatory, and from the church officer, Finlay Graham, father to Hugh Graham, the present officer.

Interrogated in terms of the seventeenth of said interrogatories, viz.— Seventeenth, Who was the father of William Ross, the entailer, and who was his paternal grandfather? Depones—The father of William Ross was David Ross of Mid-fearn, called Dhai Mhore in Fearn, and his paternal grandfather was called Andrew Ross of Shandwick.

Interrogated in terms of the eighteenth of said interrogatories, viz.— Eighteenth, Had Andrew Ross of Shandwick, the grandfather of William Ross, the entailer, any other sons besides the entailer's father David; if so, what were their names? State what you know of their history; state the grounds of your knowledge. Depones—He had. His first son was Andrew Ross, who was a merchant in Tain. The next was Alexander, who had no family; and the next was David, the father of William, the entailer; and the next was George, the youngest of all. He had none but the four sons that I heard of. I never heard of a son called Walter, nor of one called Charles, nor of one called Farquhar. I never heard of a son of his called William, a writer in Edinburgh. I never heard of a son called Hugh, nor of a son called Robert. I heard that Andrew Ross, merchant in Tain, and son to Andrew Ross of Shandwick, had a daughter called Mary, who married Bailie Reid of Tain, from whom is descended the claimant Reid, and another

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daughter called Catherine, who was married to David Ross, commissary-clerk, Tain, from whom is descended the claimant Duncan. [I remember John Polson the elder, at Fearn, telling me that shortly after William Ross, the entailer, came to Shandwick, he, Polson, was present while a conversation took place between his father George Polson and Andrew Ross Geodh; that George Polson said in this conversation to Andrew Geodh— you'll be a grand man now since this rich friend of yours came here; and that Andrew answered— Well, supposing he died without a family, my children would have a right to all he would leave.] Mr Hood told me how many sons there were of Andrew Ross of Shandwick, besides other people. I don't see any occasion to give you any more of the history of the sons of Andrew Ross of Shandwick.

Interrogated in terms of the nineteenth of said interrogatories, viz.— Nineteenth, Had the said Andrew Ross of Shandwick any daughters; if so, name them? State what you know of their history. State the grounds of your knowledge. Depones—I did not hear that there were any daughters.”

Counsel for Mr Duncan and Captain Reid objected to this evidence being received; and the Lord President rejected the evidence so far as contained in the answers to the 12th and 13th interrogatories (with the exception of the sentence beginning—“Also from John Vass”and ending “in the grave”), and in the answers to the 14th, 15th, and 18th interrogatories (except the sentence beginning—“I remember John Polson” and ending with “would leave”), and quoad ultra the Lord President admitted the evidence. The portions of the 13th and 18th answers which were admitted are in brackets.

The ruling of the Lord President was excepted to by the counsel for Mrs Macpherson and Mr Robertson in so far as any part of the evidence was thereby excluded.

The deposition in answer to the interrogatories-in-chief, so far as not excluded, was then read to the jury, but the cross-examination was not read to the jury, being withdrawn by the counsel for Mr Duncan and Captain Reid, with the consent of counsel for Mrs Macpherson and Mr Robertson.

The jury finally returned a verdict finding for the defenders in the issues in which Mrs Mackintosh, Mrs Macpherson, and Mr Robertson were respectively pursuers, and for the pursuers in the issues in which Mr Duncan and Captain Reid were pursuers.

Argued for Mrs Macpherson and Andrew Ross Robertson—By the law of Scotland the hearsay evidence of a dead person was admissible, with the proviso that it was such evidence as the deceased person if alive could have given. There was no reason in principle why in reference to events which occurred so long ago hearsay of hearsay should not also be admissible, and the contrary had never been decided. In this case, however, all the rejected evidence was not hearsay of hearsay, for the deponent says that one of his informants, viz. William Ross, was “himself well acquaint with George Ross, Tarrel.” Such evidence was clearly admissible where the main thing to be proved was the fact that this “George Ross, Tarrel,” was married to a certain woman. But it was said, on the authority of the English cases, that in questions of pedigree hearsay evidence was only admissible if it was the evidence of members of the family or of relatives. That was no authority, for the general rule in England was that the hearsay of dead persons was inadmissible, whereas in Scotland the general rule was that it was admissible. Lastly, it was objected that the evidence here tendered was mere rumour—common talk of the country. The facts spoken to may have been the common talk of the country, but the evidence was more. The old men, whose evidence it was that the deponent gave, had all of them exceptionally good means of knowing as to the truth of the facts to which they spoke. John Vass lived at Balintore, William Ross at Hill of Fearn, and Donald Munro and Alexander Hendry at Tullich. All these places were within a few miles of Shandwick House, the headquarters of the family, and Tullich was the very place where, until his death in 1781), Andrew Ross lived, and where his mother Merran Manson lived. The evidence of immediate neighbours was perfectly good evidence as to who was a man's father or a woman's husband in a rural district such as this was.

Argued for Mr Duncan and Captain Reid—The evidence was rightly excluded (1) because it was incompetent; (2) because if not absolutely incompetent, it was altogether worthless. It was incompetent because it was nothing more than rumour —country gossip. In cases of pedigree the English rule excluded all who were not relations. The principle on which that rule was founded was that unless the witness had some interest to know as to the matter to which he spoke his evidence was not reliable. Applying here the test of interest, the evidence must be excluded. The witnesses were not shewn in any way to have special means of knowledge. The mere fact that they lived in the same district was worth nothing. Even if the evidence was competent, it was so untrustworthy as to be utterly worthless, and it was the duty of the presiding Judge to refuse to admit such evidence.

Authorities— Alexander v. Officers of State, 30th March 1868, 6 Macph. (H. L.) p. 54 (Lord Chelmsford's opinion p. G2); Smith v. Bank of England, 7th December 1826, 5 S. 98; Scott v. Napier, 11th June 1869, 7 Macph. p. 35; Stair, iv. 43, 15; D. of Roxburghe v. Sharpe, M. voce. Witness, No. 38; Hume xi. 406; Steen v. Bowman, 13 Curtis' Supreme Court Decisions, p. 126; Taylor on Evidence, i. 375; Whytock v. Baker, 13 Yesey 514 (Lord Eldon's opinion); Vowles v. Young, 13 Vesey 140; Place v. Earl of Breadalbane, 17th July 1874, 1 R. 1202.

At advising—