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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Murray and Others v. Tod and Others. [1817] ScotJCR 1_Murray_222 (13 March 1817)
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Cite as: [1817] ScotJCR 1_Murray_222
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SCOTTISH_HoL_JURY_COURT
Page: 222↓
(1817) 1 Murray 222
CASES TRIED IN THE JURY COURT.
No. 21
v.
Present, The Three Lords Commissioners.
This was a multiplepoinding brought by the treasurer of the Royal Bank of Scotland, for the purpose of ascertaining who had right to two promissory notes, the one for L. 800, the other for L. 200.
The claimants on the one side were the nearest of kin of the late Mr Tod, and on the other certain parties who claimed those notes as having been delivered to a third party to be held for their behoof.
Page: 223↓
“Whether the Reverend John Tod, minister of Fogo, being possessed of a promissory note of the Bank of Scotland for L.800, did indorse the said promissory note in presence of one Thomas Younger, a residenter in Fogo, and deliver the same to one Janet Murray, his servant, as a reward for her services; and whether she did place the said note in the hands of the said Thomas Younger, to be kept by him for her? Or whether the said John Tod did place, or cause to be placed, in the hands of the said Thomas Younger, to be kept by him for the use and benefit of the said Janet Murray, with directions that the said note should be delivered to the said Janet Murray after the death of the said John Tod, as a reward for the services of the said Janet Murray?
Whether the said John Tod, being possessed of another promissory note of the Bank of Scotland for L. 200, did indorse the same, and, before his death, place, or cause the same to be placed, in the hands of the said Thomas Younger, to be kept by him for the use and benefit of Andrew, William, and John Mather, residing at Eyehaugh, with
Page: 224↓
And Whether the said John Tod did get back one or both of the said promissory notes from the said Thomas Younger, and again deliver one or both of them to the said Thomas Younger; and whether, when he so delivered one or both of them a second time, he gave any, and what directions to the said Thomas Younger, or any other person, concerning the said note or notes?” *
A special verdict does not state the evidence on which it proceeds.
When the first witness was called,
Clerk, for the defenders, stated,—I do not mean to object to him; but as a special verdict is expected, it ought also to state the evidence on which it proceeds, whether written or parol, and if the latter, the number of the witnesses, &c.
_________________ Footnote _________________
* The interlocutor approving of the issues also “Finds, that, in the trial of the said issues, Janet Murray, Andrew, William, and John Mather, must appear as pursuers.”
Page: 225↓
Lord Fife v. Trustees of late Earl, supra, 121.
From the nature of the case a special verdict must be returned; such a special verdict as was returned in a great case lately tried in this Court. The facts may be found either by proof or agreement of parties. In the neighbouring country, where trial by Jury has been long established, it is seldom that a special verdict proceeds on proof taken at the bar; it is commonly matter of agreement; but perhaps that is more than can be expected in this new and experimental institution. If the verdict is to be drawn from proof, it is impossible to go into Mr Clerk's idea; it would be putting the evidence on record, and not the result of the proof, which is the way to form a special verdict.
If the party be dissatisfied with the verdict, he may apply for a new trial, and the Judges' notes will show the nature of the evidence, the number of witnesses, what evidence was received, what rejected.
Competent to ask, if a person lived on good terms with his relations, to show the probability of his not intending to leave them his property.
The witness was called, and asked if the late Mr Tod lived on good terms with his relations; to which it was objected, That this was not in the issue.
Page: 226↓
The witness was then asked as to the state of Mr Tod's mind.
Incompetent to support the character of a witness by proof.
A question was then put in order to support the character of Younger, (mentioned in the issue,) a witness afterwards called.
A minute, which had been made up at opening the repositories of the late Mr Tod, was shown to the witness, and the Court allowed it to be read as it was stated to be necessary, for understanding the future testimony.
The witnesses swore that the late Mr Tod was a man about 70 or 71 years of age.
Page: 227↓
Younger swore that Mr Tod indorsed and gave the bills to Janet Murray, and desired her to deposit them with the witness, and that he got them back from the witness, but returned them, saying, let all things be as they were. The witness also swore that Dr Murray had attended Mr Tod in his last illness, but that he had since gone to India;—was told by his relations that he was gone to Berwick on his way to India, and when the witness carried a parcel for him to Berwick, he was there informed that he had sailed. Witness was asked whether he considered himself custodier for Janet Murray, or for Mr Tod?
Circumstances in which one pursuer was held to be a competent witness for another.
Janet Murray was called as a witness.
Jeffrey, for the defender,—We must object. It is only in the question with the Mathers that they can possibly think of calling her, and even there she is inadmissible. She is the leading pursuer; the transaction is one; there is one issue, and it is sent to one Jury. From the manner of conducting the case it is impossible she could give evidence in their case without, at the same time, giving evidence in her own.
Page: 228↓
Cockburn, for the pursuer,—As they object we do not insist on calling her.
Clerk, for the defenders, stated an objection to some questions after they were answered.
Cockburn, in his opening speech, stated,—The Jury are not to decide the cause, and may therefore free their minds from any argument in law that may be stated. Their duty is to find the facts, and the Court will apply the law.
Clerk contended,—The pursuers have not proved an absolute gift. A legacy or mortis causa donation is revocable, and cannot be constituted by bill.
Mitchell v. Wright, 21st Nov. 17, 19. Fac. Col. Dic. I. 377. M. 8082.
By the law of Scotland, (to which the Jury are sworn to adhere,) two witnesses are necessary, and here there is only one. A gift even of a sum of money which has no ear mark, can only be proved by the oath of the defender,
Page: 229↓
M'Farquhar v. Calder, 15th June 1779. Dict. III. 185. M. 3600.
This statement is necessary, in order that the facts may be brought out so as the law may apply to them. It is not conceivable that Mr Tod intended to give away these bills, though certified by a hundred witnesses; and it is clear that he and all concerned believed the property of them to remain in his person.
The defenders called no witnesses.
The verdict must be derived from a pure consideration of the facts, without reference to the law, therefore, our object must be to frame a verdict in such a manner that the Court of Session may apply the law.
It is clearly implied in the terms of the issues, that the Court consider it material to have it ascertained whether this was an absolute gift, or only to take effect after death;
Page: 230↓
Two witnesses are necessary by the law of Scotland; but one witness, if supported by facts and circumstances, is sufficient. In this case there is only one witness to the facts that took place when the documents were delivered; but,—the minute made up at opening the repositories, when most of those interested were present,—the intention of Mr Tod to provide for his servant, and his consultations about the best method of doing so, which are proved by other witnesses,—his duty to provide for an old servant, and his intention to do something for a family in Northumberland,—we consider as facts and circumstances rendering it proper for us to submit this testimony to your consideration.
I have no observations to make on the condition in life of the principal witness. You have seen him, (which is one peculiar excellence of this mode of trial,) and can judge if his evidence does not seem consistent with truth.
It is not contradicted that Dr Murray has left this country, and his absence is proved by good legal evidence. The witness was told by his family that he had gone to the East Indies;
Page: 231↓
Mr Tod having taken back the bills is an important fact in judging to whom they belonged; but you must consider whether this was done with the intention of showing his power over them, or with a view of making the pursuers more secure.
If you believe Younger, (and I see no ground to discredit him,) you will find the first part of the first issue proved; but I do not consider the second issue so clearly proved, though the difference in the language sworn to by the witness was natural in speaking to Murray who was present, and of the Mathers who were absent.
Verdict,—“That, in respect of the matters of the said issues proven before them, they find as to the first issue, that the Reverend John Tod, minister of Fogo, being possessed of a promissory note of the Bank of Scotland for L. 800, did indorse the said note in presence of Thomas Younger, residenter in Fogo, and deliver the same to the said Janet Murray, the pursuer, his servant, as a reward for her services, and that she did place the
Page: 232↓
Counsel:
Baird and
Cockburn,for the Pursuers.
Clerk,
Jeffrey, and
Clephane, for the Defenders.
Solicitors: (Agents, Robert Strachan, and Renton and Grant, W. S.)