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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Halliday v. Rule. [1822] ScotJCR 3_Murray_119 (16 July 1822)
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Cite as: [1822] ScotJCR 3_Murray_119
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SCOTTISH_HoL_JURY_COURT
Page: 119↓
(1822) 3 Murray 119
CASES TRIED IN THE JURY COURT.
No. 13
v.
PRESENT, LORD CHIEF COMMISSIONER.
The pursuer having promised to pay a bill, which, in the opinion of engravers, was not subscribed by him, the Jury found for the defender.
This was a suspension, turned into a reduction, of a charge upon a bill of exchange, upon an allegation of forgery.
“Whether the name of John Halliday, subscribed
Page: 120↓
A law agent examined to certain facts, there being a penuria testium.
Scott v. Caverhill, Dec. 19, 1786, M. 16779.
When the first witness was called,
Jeffrey objects, He is and has been the country agent in this cause. An agent is only good where there is penuria testium, and where the fact occurred before the agency. Elliot's and other cases.
_________________ Footnote _________________
* This case was returned to the Court of Session, there being a doubt how far, under the form of the action, it was competent to prove a promise to pay the bill. The case was afterwards retransmitted with a draft of an issue approved by the Lord Ordinary.
Page: 121↓
Cockburn.—He has been the agent, but he is good to one fact; to prove the subscription of the pursuer in a paper containing articles of roup.
M'Alpin v. M'Alpin, Dec. 2, 1806, M. App. Wit.
Lord Chief Commissioner.—It is clear that there is a rule against receiving an agent as a witness, but it is equally clear, that there are exceptions to that rule, and penuria testium is one of these exceptions. It is said that rule cannot apply to this case, as the fact occurred at a public roup, but though there may have been a hundred people present, there may have only been one looking at the writer.
On another principle, I think it admissible, viz. that he acquired his knowledge of the fact at a time previous to his agency, and when there could be no gloss given to it, and that he is now upon oath. In all cases I am disposed to admit rather than reject evidence.
Comparatio arum by engravers, competent evidence.
When Mr Lizars, an engraver, was called to prove the subscription forged,
Jeffrey.—This is no doubt competent in certain circumstances, but not where it is rested on as the only proof of forgery.
Cockburn.—There is nothing more certain than that this is competent.
Page: 122↓
Lord Chief Commissioner.— What I said in a former case was, that it was very satisfactory to have the case founded on the oath of persons acquainted with the handwriting. We know handwriting much in the same manner as an acquaintance, by the general appearance, not by every minute line in his face. If I had been to follow the light of my own mind, I would have taken a different course, and rejected the evidence, but it is now too late. By the law of Scotland, the objection goes to the conclusiveness of the evidence, not its admissibility.
Mr Cockburn opened the case for the pursuer, and Mr Jeffrey for the defender; and after the evidence for the defender, Mr Cockburn declined making any reply.
Lord Chief Commissioner.—The evidence now given is a complete refutation of the scientific evidence. This appears to be an abominable fraud, and you will find for the defender. Mr Cockburn gives up the case, and the party having acknowledged the bill, all the engravers could say would not alter the case.
Page: 123↓
Verdict—“For the defender, Thomas Rule.”
Counsel:
Cockburn, for the Pursuer.
Jeffrey and, for the Defender.
Solicitors: (Agents, Alex. Blair, w. s. and Johnston & Little, s. s. c.)