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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Whyte and Mandatory v. Clark and Others. [1817] ScotJCR 1_Murray_233 (20 March 1817)
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Cite as: [1817] ScotJCR 1_Murray_233
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SCOTTISH_HoL_JURY_COURT
Page: 233↓
(1817) 1 Murray 233
CASES TRIED IN THE JURY COURT.
No. 22
v.
Present, Lords Chief Commissioner and Gillies.
Impartial and intelligent witnesses having sworn that they considered a person capable of managing his own affairs, and having supported their opinion by particular facts; found that he was not to be considered an “idiot” or “fatuous and incapable of understanding business,” though other witnesses swore that they considered him so.
This was a reduction brought by Mr Whyte, the nephew and heir-at-law of James Duthie, for setting aside certain gratuitous deeds which he had granted to the brother and sister of the pursuer, and a sale of part of his heritable property to Mr Kinloch. The grounds of reduction were, that Duthie was an idiot and imbecile, and that the gratuitous deeds had been impetrated through fraud and circumvention.
“Whether the deceased James Duthie was an idiot from his infancy, or, at least, at the beginning of the year 1801, was fatuous, and incapable of understanding business, and continued in that situation until his death?”
Duthie, from his infancy, was a man of weak mind. When he came to Edinburgh he lived with his sister, Mrs Whyte, but spent the
Page: 234↓
He afterwards lived with his niece, Mrs Clark, the defender, who treated him with much kindness and attention, and his conduct during this period was very different from what it had formerly been.
A number of witnesses were examined on both sides; many of those for the pursuer considered him an idiot and incapable of managing his own affairs, but they grounded their opinion principally on observations made during his residence with his sister. The witnesses for the defenders, on the other hand, considered him capable of managing his affairs, and stated the facts on which they grounded their opinions.
After a case is called on for trial, a commission to examine a witness will only be granted of consent.
Act Sed. 9th Dec. 1815, § 18 and 22.
When the case was called on for trial, a motion was made for a commission to examine a witness confined to bed, or that the Jury might be allowed to hear the witness examined in his own house. On reference to the act of sederunt, it was decided that the motion ought to have been to put off the trial, and that a commission could only be granted by consent of the defender; which not being obtained, the counsel for the pursuer consented to go to trial without the witness.
Page: 235↓
A witness not contained in the list served on the opposite party will not be received without cause shown.
Within the time limited by act of sederunt, there had been served on the defender an additional list of eleven witnesses. Before proceeding to trial, it was proposed that the pursuer should be allowed to examine them, though regular notice had not been given. The Court would not determine on this motion till they heard the evidence of some of the other witnesses, and were fully aware of the situation in which these witnesses stood. The Lord Chief Commissioner, however, remarked in general, that agents ought not to try how many witnesses they can cite, but with how few they can prove their case; and that the number cited in the other cases was remarkable compared with the number examined, though allowance was to be made for the anxiety natural, especially in a new institution.
After the examination of several witnesses, it was proposed to call one in the additional list; and to induce the Court to receive him, it was stated, that he was a material witness; that his examination would save calling a number of others; that the pursuer was ill in London; and that his agent was in the country, taking the proof on commission at the time this witness was discovered, and did not return till it was too late to give regular notice.
Page: 236↓
This is the first time that we have been called upon to exercise this discretion, and we must take care on the one hand, that the party may not, by surprise, be deprived of a material witness, and on the other, that he may not be allowed to bring forward a witness of whom he ought to have given notice.
The question is, whether there is such surprise as entitles us to deviate from the general rule? We cannot listen to the absence of the party, it is to the agent only that we look. I am as ready as any man to testify the respectability, industry, and ability of the agent in
Page: 237↓
It is long since the condescendence in this case was given in, at which time, the general nature of the evidence ought to have been known. It is also a considerable time since the issue was framed. This witness resides in the neighbourhood; this is a case of oversight, not of surprise.
It is not competent to prove bankruptcy by parol evidence.
A witness being asked if a man was bankrupt before his death, the Lord Chief Commissioner observed.—This is irregular, if you mean to prove the bankruptcy.
Two defender are not entitled to address the Jury by separate counsel, unless injustice will be done by allowing only one.
When the pursuer's proof was closed, Mr Clerk stated,—The two defenders are not entitled to address the Jury by separate counsel—if the Clerk of the Jury Court—if Lord Gillies, or the Division of the Court of Session, had supposed this possible, they would have framed separate issues.
Page: 238↓
In the other Court, the only case which appears to me analogous to the present, is that of a hearing in presence. In the case of the Duke of Roxburgh, the Court ordered the parties maintaining the same plea on the matter to be made the subject of argument, to be heard by the same counsel, though the interest of the parties differed materially on the other branches of the same case. How far under the rules and regulations we are entitled to prevent both counsel from being heard, is more doubtful; but, on the whole, I think we ought to follow the practice of the other Court.
The rules and regulations do not appear to me to apply to this case. Unless the rights of justice call upon us we should be cautious in allowing it.
It must be as clear as day, that the conduct
Page: 239↓
A counsel, in opening the case, ought not to state the substance, or read the words of any document which he does not intend to make evidence.
Moncreiff, in his opening speech, was proceeding to read certain letters from the late Mrs Whyte, (Duthie's sister,) and from the defender Mrs Clark, when he was interrupted by a question from the opposite counsel, whether it was possible to make these evidence? Mr Clerk contended, that they were clearly relevant, and that Mr Moncreiff was entitled to state every word of them from copies, but he would not read them till they were proved.
Page: 240↓
Jeffrey stated, That he did not object to the relevancy of the contents of the letters, but to the letters themselves.
It is incompetent to read letters from a person who, if alive, could not have been a witness in the cause.
After being proved, they were tendered in evidence, and the objection was again stated, that they were not evidence, being from a person who could not have been a witness.
After some farther discussion, Mr Clerk did not insist on reading them.
Cockburn, in his speech for the defenders, stated, That certain actions had been brought against Duthie, by the pursuer and others; to which it was objected, that these actions were no part of the present case. But the objection was repelled, as the statement was made to show the opinion entertained of this person by the pursuers in these actions.
Page: 241↓
A witness swearing that he believes a letter was put into the post-office with his other letters, may read a copy of it from his letter-book.
The first witness for the defender, having stated that he wrote to the pursuer on the subject of one of these processes, but that he got no answer, was called upon to read from his letter-book the copy of the letter.
Clerk.—This is not evidence; it was not produced in terms of the Act of Sederunt. In the case of the Trustees of the Kinghorn ferry, we were not allowed to read a regular extract, although produced by a witness.
When a principal record is to be produced in evidence, it is not necessary to lodge it before the trial.
Mr Robertson, from the Register Office, was called on to produce several writings, one of them the register of seisins for a particular
Page: 242↓
Statements in the proceeding in the Court of Session are not evidence to the Jury.
Mr Jeffrey gave in evidence the answers for the pursuers to the condescendence for the defenders, in which it was stated that he would prove by a witness therein named, that he (the pursuer) disapproved of the sale of the property by Duthie to Mr Kinloch. He then called the witness, who proved that the pursuer was present, but did not object to the sale.
After the passage was read and the witness examined, it was objected for the pursuer that it was not evidence.
Page: 243↓
Our decision would have been that this ought not to be read, but the parol evidence is as good without it.
Jeffrey.—I hope the Court will allow a fuller discussion of this point in some future case, before fixing it as a general rule.
A witness who has been examined and afterwards remained in Court, may be of new examined to prove a writing.
The Lord Chief Commissioner having suggested that it would be necessary to prove Duthie's handwriting before receipts by him were given in evidence, it was proposed to call back a witness formerly examined; but it being objected that he had, since his examination, remained in Court, the defenders called a different witness. The Lord Chief Commissioner, however, observed, This objection only applies to a witness called to prove a fact. I see no objection to his proving the handwriting.
Moncreiff, in his opening speech, stated,—
Page: 244↓
The question is, whether Duthie was so deficient in judgment as to render him incapable of disposing of his property. We shall prove him so by the opinion of those who knew him best, and also by proof of his mode of life.
Cockburn contended,—The pursuer is bound to prove a total extinction of mind; he has only proved that Duthie was a stupid man, and the Jury must be cautious of taking the feeling produced by a frequent repetition of the same story for a deliberate judgment founded on conviction. Mr Erskine, p. 158, defines what in law is fatuity. The question is not whether this was a clever man, but whether he was capable of managing his own affairs: The defender will prove him to have been so.
Clerk, in reply, said,—The evidence is so opposite, that it almost induces a belief that the witnesses spoke of different individuals; but none of the facts proved by the pursuer have been disproved on the other side.
It is not possible to prove a total want of mind in any case, and we have proved this man incapable of business for sixty years, which is all that is necessary. The passage read from Mr Erskine is not his own opinion, but that of
Page: 245↓
The question is not whether his was the worst species of madness or the next to it, but whether he was an idiot; and the witnesses swear that he was.
In this case there is a contrariety of evidence.
_________________ Footnote _________________
* “Of the first class are fatuous persons, called also idiots in our law, who are entirely deprived of the faculty of reason, and have an uniform stupidity and inattention in their manner, and childishness in their speech, which generally distinguishes them from other men; and this distemper of mind is commonly from the birth and incurable.”—Ersk. I. 7. 48.
Page: 246↓
The counsel for the pursuer says there is no contradiction, yet it tends to contrary conclusions; and it is for you to decide which carries conviction. Several witnesses for the pursuer proved, in terms of the issue, that Duthie was an idiot, but a greater number for the defender proved that he was not. The pursuer raised a strong presumption that he could not read or write, but it is proved beyond doubt that he could do both. There is also a contradiction as to his capacity for business, knowledge of plants, &c.
We must consider well how these contradictions are to be reconciled. The witness examined for the pursuer on commission, and who knew Duthie at a very early period, describes him as “airyish,” and some of the other witnesses state facts which indicate some mind.
At first when he came to Edinburgh, he appears to have been allowed to go about the streets, and was not only neglected but ill treated. Afterwards, when living with his niece, she appears to have been attentive to him; her letters prove that she did not consider him deprived of mind; they are affectionate and even dutiful. It is most important if this can furnish a clue to explain the contrariety of evidence;
Page: 247↓
Verdict for the defenders.
Counsel:
Clerk,
Baird, and
Moncreiff, for the Pursuer.
Forsyth and
Cockburn, for Mrs Clark.
Jeffrey and Macdonald, for Mr Kinloch.
Solicitors: (Agents, Stuart and Donaldson, w. s. Campbell and Mack, w. s. and G. Kennedy.)
On the 27th June, Mr Jeffrey moved for expences to Mr Kinloch. Mr Clerk opposed the motion, and went into considerable detail. Mr Jeffrey was about to reply.
Page: 248↓
Mr Cockburn then moved for expences to the other defenders. Mr Clerk also opposed this motion, but was again unsuccessful. He then wished the Court to find expences, subject to modification.
The order was a general one for expences.