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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Fowler v. Paul. [1821] ScotJCR 2_Murray_431 (19 February 1821)
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Cite as: [1821] ScotJCR 2_Murray_431
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SCOTTISH_HoL_JURY_COURT
Page: 431↓
(1821) 2 Murray 431
CASES TRIED IN THE JURY COURT.
No. 61.
v.
PRESENT, LORD CHIEF COMMISSIONER.
A finding for the pursuer on an Issue whether a person supported himself with propriety.
An action of multiple-poinding by an executor, to ascertain who had right to one-fifth part of the property of the late Dr Fowler, in which the Court of Session sent the following Issue.
“Whether the late Andrew Fowler did not support himself by his own industry with propriety, and in terms of his father's will, from and after the 6th day of November 1809, (when it is admitted his father died,) till the said Andrew Fowler attained the age of 30, exclusive of the period between the 12th of April 1810, and the 24th of April 1813, when it is admitted he was serving in his Majesty's service?
Page: 432↓
In the multiple-poinding, the claimants were the younger children of the testator, and the defender, who was assignee of Andrew, the eldest son. The clause in the will, upon which the question arose, was as follows:
“The other fifth to be reserved, and placed in the funds, until my son Andrew shall have arrived,” &c.
The Lord Ordinary, and afterwards the Court, decided in favour of the defender; but on a reclaiming petition, they altered the interlocutors, and sent the above Issue to be tried.
A probate of a will rejected, there being no witness called to prove the sale, &c.
The first evidence offered for the pursuer, was a probate of the will.
Clerk and Murray, for the defender, object.—The will ought to have been produced.—1. Phillips, 397, 5th edit.
Even if the probate were proved, it would not be sufficient.—1. Phillips, 342.—But there is no evidence that this is the seal, or that these are the subscriptions, of the deputy registrar.— Robertson v. Gordon, 15th November 1814.
Moncreiff, for the pursuer.—The only claim of the other party, is under this will. By the law of Scotland, this probate is evidence, and proves that the will was produced in the Prerogative Court of Canterbury.
Page: 433↓
There is no necessity for proof of any writing in Scotland. The defender does not aver that this is not a genuine seal and subscription.
Clerk.—The question is, whether this parchment proves the will. We ought to have had a witness to explain it, and also the opinion of English lawyers, on the meaning of the indefinite terms of the will.
Lord Chief Commissioner.—Among many questions which arise in this Court, this is the one which, of all others, occasions the greatest anxiety.
In this case, the parties have been litigating since 1816. The right of the defender is by virtue of an assignment to a sum claimed under the conditions of the will; and if he had been called upon, there is no doubt that he would have admitted the will, as he did the death of Dr Fowler.
If the Court of Session were as much in the habit of directing Issues as the Court of Chancery, I have no doubt that they would have directed that this probate should be received as evidence of the will. But the difficulty now is, whether, after the Jury are sworn, and can only be relieved by consent, I
Page: 434↓
Were I to introduce my private knowledge into this case, perhaps there are few who have had more experience, as to this seal and the signatures; but I mention this, that I may lay it aside.
I am most anxious not to decide this on the law of England, but on the principles of the law of Scotland; and I am most unwillingly brought to the decision. But here I think I have principles of the law of Scotland, as well as of England, and all civilized states, to guide me.
The act of a Court, within the province of that Court, must be held sufficient; but in a foreign country, these acts are mere matters of evidence, which must be subject to the common rule.
In England, the law of Scotland must be proved as a fact, and the documents authenticated. In England a bond must be proved by a witness, but in Scotland a deed does not require such evidence, but must have certain solemnities. If such a deed were produced in England, it would not be necessary to prove the subscription; but it would be sufficient to prove that such evidence was not necessary in
Page: 435↓
Does this deed come proved in this manner?
If I were satisfied with the proof of this probate, I would admit it to be read, as the same accuracy is presumed as to a foreign will, as would be presumed of a will within the province of the Court.
The case of Robertson goes the whole length of this, that there must be proof of what is necessary in the country from which the document comes.
This is a separate country, and we must reject this, as no witness has been called to prove the correctness of the document, the signatures, and seal.
The claim by A. Fowler was then offered.
Clerk—Objects.
Lord Chief Commissioner.—According to this view, the Court of Session sent the case here to be tried, when there was no will in existence.
After mentioning the cases of Leven and Young, Vol. I. p. 350 and 376, and Thomson and Clark, Vol. I. p. 167, Mr Clerk withdrew the objection.
Page: 436↓
The, claim was then given in, and part of it read.
A pursuer giving part of a process in evidence, does not entitle the defender to insist that he shall produce the whole process.
Murray.—They must give in the whole pleadings; and we are entitled to have a minute and the interlocutor upon it read. In the case Harper v. Robinson, ante, p. 393, the declarations were held part of the precognition, and were read. In Thomson's case, it was held that proceedings in the Court of Session, only proved the allegation of the party, not the existence of the deed.
Cockburn.—Do they mean to say, that, by our giving one document in evidence, they are entitled to give in any part of the process?
Clerk.—We are entitled to all matter, explanatory of that document.
Lord Chief Commissioner.—The rule is, that when a party reads part of a document or proceeding, he need not go farther than he chooses; but he puts the whole in evidence; and the other party is entitled to have the whole of it read. The question is, whether, what you propose to have read is pars ejusdem negotii. The pursuer gives in part of the proceedings in the Court of Session, and you say you are entitled to give
Page: 437↓
It is said that the document given in by the pursuer, entitles the defender to give, at this stage of the cause, any evidence from the process, that may be an answer to the action. I shall regret if the Court has laid down any such doctrine. After looking at the document, his Lordship said—I am sorry that I intimated any opinion before seeing this document. It is complete of itself, and is given in to prove that there was a will; but it is admitted that this does not fix it on the present defender. Can it be held, that in justice or common sense, you are entitled to range through all the productions? Whatever is ad idem in this document given in by the pursuer, may be read; but my opinion is, that you are not entitled to range through the other documents at present, though it will be competent for the defender afterwards to offer them in evidence, and to shew that they are competent evidence.
Page: 438↓
The raiser of an action of multiple poinding received as a witness.
When the executor was called as a witness,
Murray objects.—He is the raiser of the multiple-poinding, and is liable for the consequences.
Moncreiff.—He merely brings the money into Court, and has no interest.
Clerk.—The interlocutor must be read; and I will shew that he is an incompetent witness.
Lord Chief Commissioner.—It is not necessary to read the interlocutor, as his being a mere party on the record, I should not think sufficient. In all cases of this sort, I think the Chancellor would direct that such a witness should be examined; but in a case involving the proceedings of the Court of Session, it is impossible for me to proceed, except on general principles.
Lord Gillies afterwards came into Court, and the question as to the competency of the executor being called, was again agitated.
Clerk.—The executor has a large fund to account for, and has to justify himself in bringing the multiple-poinding, and to account to every one for his share. May not his conduct in the case subject him in expences?
Moncreiff.—He is clearly admissible, as he
Page: 439↓
Lord Chief Commissioner.—My great anxiety was not to run into any technical difficulty; and from that I shall be perfectly relieved by my brother. If there is no technical difficulty, my opinion on general principles is clear, that it must be made out that he has an interest. In this case he brings the multiple-poinding; in that action he must pay to one or other, and must thus account for the last fraction. All that he can get by his evidence is, that he may shift the responsibility; but still, if he remains responsible to one or other, this does not relieve him from any thing.
Page: 440↓
The second objection is interest; and that excludes a witness, whether he is a party or not. In this case, it is a matter of indifference whether the witness accounts to A or B; and the only way of supposing him to be interested, is to suppose that one will, and the other will not, exact it. Suppose the case of a tenant whose landlord dies, and that the legitimacy of the heir is disputed; could an objection be taken to the tenant as a witness, that he expected the one party to be more favourable than the other?
Mr Miller, the executor, was then called; On his re-examination, he was asked if he gave in a minute, consenting to pay over the share of Andrew Fowler, in consequence of a consent from the family.
Clerk objects.—This is incompetent: the terms of the minute will appear from the paper.
Lord Chief Commissioner.—The only
Page: 441↓
A witness was called, who had been servant to, an aunt of Andrew Fowler, about six years ago, when he was living in his aunt's house; and was asked, Whether did Andrew Fowler behave regularly, or did he stay out whole nights without leave?
Clerk objects.—They must first prove that at that time Fowler was under 30. But the question has not the slightest relation to the Issue, which is, whether he supported himself; and whether he used proper means for doing so. The Issue, which is taken from the will, is not very intelligible, and ought to have been explained by the opinion of English counsel; but as that was not done, we must take the words as they stand.
Lord Chief Commissioner.—The real questions here are, Whether this witness can speak to the time? and Whether it is admissible under the Issue?
Page: 442↓
The witness stated, that the time she speaks of was six years ago; and it is proved that Fowler was born in 1786. There therefore appears no objection as to the time.
The next question arises on the words of the Issue, which are taken from the will. The money is to belong to the son in a certain event, that is, if he supported himself by his own labour, and if, while so supporting himself, he acted with propriety; the meaning of which I hold to be, acting with correctness in pursuit of that support.
Had I taken an objection to the question, it would have been, that it was a leading question; but as that is easily corrected, we come to attend to the merits. The pursuer is trying to shew that he did not comply with the condition in the will; and is it, or is it not, an ingredient in this, whether he lived regularly or not? I cannot direct the order in which they are to prove their case; and in common sense, is not this an ingredient in the proof? At the same time, I never would think of stating to the Jury, that evidence of dissipation, though it is clearly admissible, was sufficient to support the case. As to the
Page: 443↓
Incompetent to ask a witness whether a person acted with propriety.
Another witness was asked if Fowler acted with propriety? An objection was taken to the answer, that it was not evidence.
Lord Chief Commissioner.—I cannot take this, as I think it is not evidence. They ought to ask as to facts, and the Jury will form their opinion, and draw the conclusion.
Another witness was asked as to certain facts; but an objection was taken, that the time was not fixed.
Moncreiff.—It is competent for us to bring evidence of his conduct after he was 30, to shew his habits before. The other party had notice of this in our condescendence.
Lord Chief Commissioner.—It would tend very much to dispatch and regularity of proceeding, if you would fix the time. This may run into shades, but I cannot allow evidence after he was 30. It is extremely difficult for the Court to restrict the evidence to the exact period to which it is properly applicable. I do not mean to lay down any
Page: 444↓
Incompetent to prove the declaration of a person after he has assigned a right to affect the interest of the assignee.
A witness was asked if Andrew Fowler died in the hospital at Dumfries, and if he had declared that he did not support himself.
Clerk objected—That this was posterior to the assignation to the defender.
Moncreiff—His dying a beggar shews that he could not have supported himself with propriety only two years before. We have nothing to do with the assignation here.
Lord Chief Commissioner.—If taken abstractly, the declaration of a party may be given in evidence, though made after the
Page: 445↓
A witness admitted, altho' imperfectly designed in the list.
An objection was taken by the defender, that the designation of a witness was not sufficient; a wrong name being worse than a blank.
Reference was made by the pursuer to the case of—Wooley, Esq. in the case of O'Reilly and Innes, ante, p. 416.
Lord Chief Commissioner.—I cannot conceive that any prejudice can be done by admitting this witness. In substance and justice this witness ought to be called and examined.
A document rejected, not having been produced eight days before the trial.
In the course of his examination, he produced
Page: 446↓
Menzies and Clerk.—Parol evidence is not competent to prove what took place in a Court. This is not a record, and ought to have been produced as any other document.
Moncreiff.—This is a principal record, and we could not produce it before the trial.
Lord Chief Commissioner.—It is not necessary here to enter into the question whether this is a record which cannot be removed or not. If I had been conducting the case, I would have thought parol evidence sufficient of what took place in a Court of this description. But the present question is regulated by the 5th section of the Act of Sederunt, 9th July 1817, by which a diligence should be applied for; and if it is a record that is called for, a note should be served on the Keeper of the Records. This paper has not been treated in the way that a written document ought to be treated; and I do not think this a case in which the party is entitled to call for the exercise of the discretion vested in the Court, and therefore I reject this paper.
A witness rejected, having been improperly designed.
When another witness was called,
Page: 447↓
Clerk objected.—He is not designed as a porter, though he is one.
Lord Chief Commissioner.—I understand that chairmen are not porters, and therefore sustain the objection. I never saw such a case as this, and hope I never shall, again.
Cockburn opened the case, and stated that the Jury had only to try the fact in the Issue; that he would prove Fowler a complete profligate; and that, instead of supporting himself with propriety, he did so by begging, borrowing, and stealing.
Clerk, for the defender—Stated that Dr Fowler did not breed his son to any profession, and used him ill; that the son succeeded to half of his grandfather's fortune, and lived upon that, when not employed in the navy.
Lord Chief Commissioner.—What we have now to attend to, is the question at issue, and the evidence on oath, by which that question is supported; for statements unsupported by evidence, must be disregarded.
The question before us comes from, the Court of Session, who wish certain facts to be ascertained, before giving an opinion on the terms of Dr Fowler's will. We are not
Page: 448↓
The terms of the Issue are the terms of the will, and the first fact is the date of Fowler's birth. The pursuer made a prima facie case, shewing that Fowler was born in 1786; and this must be taken as the date, there being no evidence on the other side. This would make the terms of the will apply to six years; but from this must be deducted
Page: 449↓
From the terms of the Issue, it is clear that the pursuer had to struggle with a negative proof; but on the facts proved, you are to judge if this person supported himself with propriety. It is said you are to judge of this according to the conduct of other sailors, that being the line of life in which he was. I am not sure if I can state it to you in this manner, as there is pregnant proof of what the father meant, and the son was not a sailor till after his father's death; but he did get into the navy; and if you find him anxious for employment in that profession, that is matter for your consideration. There is an absence of evidence as to his endeavour, while out of employment, to get back to the navy;
Page: 450↓
Verdict—“Find that the late Andrew Fowler did not support himself by his own industry with propriety, and in terms of his father's will, from the date of his father's death, until the said Andrew Fowler attained the age of 30, exclusive of the period when it is admitted he was in his Majesty's service.”
Counsel:
Moncreiff and
Cockburn for the Pursuer.
Clerk,
J. A. Murray, and
Menzies, for the Defender.
Solicitors: (Agents, Thomas Lawson and P. Campbell).