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SCOTTISH_HoL_JURY_COURT
Page: 450↓
(1824) 3 Murray 450
CASES TRIED IN THE JURY COURT.
No. 47
v.
Present, The Lord Chief Commissioner.
Finding that a deed was obtained from a facile person by fraud and circumvention.
Reduction of a disposition and deed of settlement on the ground of imbecility—of facility, circumvention, and lesion—and of fraud.
Defence.—Homologation.
“It being admitted, that, on the 25th day of November 1816, the late Marion or May Thomson signed the disposition and deed of settlement in process. It being also admitted, that the said Marion or May Thomson died on the 20th day of April 1818.
Whether the said deed was not the deed of the said Marion or May Thomson?
Page: 451↓
Whether the said Marion or May Thomson was a person of a weak and facile mind, and easily imposed upon, at the time of granting the said disposition and deed of settlement (viz. on 25th November 1816:) And whether the said defender James Spence, taking advantage of the said facility and weakness, did, by fraud or circumvention, prevail on the said Marion or May Thomson to grant the said disposition and deed of settlement, to her enorm lesion?
Whether the defender James Spence did, by fraud, prevail upon the said Marion or May Thomson to execute the said diposition in his favour?”
Circumstances in which persons alleged to be interested as legatees, were received as witnesses.
When the first witness for the pursuer was called,
Moncreiff, for the defender.—She is interested, being a legatee in all the deeds.
In 1816, Mrs Thomson leaves the residue of her property to the defender. The two Misses Clark bring a reduction of this, and Miss Jane Clark executes a settlement, leaving to this witness L.500.
Gilbert, p. 119. Tait's Law of Ev. p. 362.
If the action succeeds, she will get the legacy, and if it does not, a previous legacy must suffer a deduction of 20 per cent. It is said
Page: 452↓
Jeffrey, for the pursuer.—The fact answers the objection, for, in the deed 1807, the sum is left to the surviving sister, and Miss Plummer Clark is the survivor. The witness cannot be in a better situation than Miss Clark was when alive. They must prove their objection, and it is sufficient if I can state any thing to elide it. Can they, by a side wind, reduce this holograph deed? Nothing comes to Jane by the death of Mrs Thomson, so the witness can have no interest.
Lord Chief Commissioner.—Every thing depends on the terms of the bequest. It appears that the interest of Miss Clark lapsed, and that the funds are now in the funds of Miss Plummer Clark. Mrs Thomson's will is to the longest liver of her sisters; and as Miss Plummer Clark is the survivor, the interest of Miss Jane ceased at her death.
The general line of distinction in every question of this sort is, whether the objection renders the witness incompetent, or whether it
Page: 453↓
The question of interest in a witness has been frequently discussed, and if the interest is direct, the witness must be rejected. Here the interest is said to be direct, because the legacy must suffer a deduction of 20 per cent., but it appears to me of a complex nature. No doubt, the action is at the instance of both sisters, as next of kin or heirs to Mrs Thomson, but the conclusion is not to recover the funds, but merely a general conclusion for reduction of the deed, and the effect of this must depend on the other deeds that may be in existence, or if there are none, then they succeed to the fee-simple. It is in evidence, that there is a deed in 1807, and to that deed, resort may, and will be had, if this action succeeds. That deed gives the residue to the longest liver, and if that deed is to regulate, then the death of Jane Clark put an end
Page: 454↓
In England, from the days of Lord Holt to the present Chief Justice, the leaning of all the Judges has been to relax the objection to the competency of a witness, and allow it to go to his credit. There is the same leaning in Scotland, though it has been more fully brought out in England. In the present case, I shall put it strongly to the Jury, as affecting the credit, though I cannot sustain it as affecting the competency of the witness.
The deposition of a haver cannot be produced to prove a fact in the cause.
The defender proposed to give in evidence the depositions of the pursuers, as havers.
Jeffrey, for the pursuer, objects, It is incompetent to read the deposition of any haver, and the only oath of a party is one on a reference, and an oath by one pursuer could not be used against the other.
Scott v. M'Gavin, Vol. II. p. 494.
Moncreiff, for the defender.—It is not in proof of a fact, but to show that we did all in our power to recover the written instructions; and, in the deposition, it is admitted that they existed.
Page: 455↓
Lord Chief Commissioner.—We are to consider this as if the papers had been called for in this Court at the period when the haver was put into the box and examined. The purpose is, first to obtain the document, and, next, if it is withheld or lost, to entitle the party to give secondary evidence of the contents. A party called in this way cannot be turned into a witness, and I do not think that any fact in the deposition can be produced to the Jury.
The defender then called for production of a memorial sent to counsel, which was described by the pursuer in the Court of Session, as containing a correct statement of the facts. To this Mr Jeffrey objected.
Lord Chief Commissioner.—They do not choose to produce this, and I cannot compel them.
Skene opened the case, and stated the failure of mind in Mrs Thomson before her death,—that she had employed the defender to make her settlement, and had put into his hands a previous deed, by which the residue of her property was left to the longest liver of her sisters,—that the new deed, framed by the defender, conveyed the residue to himself. In
Page: 456↓
13 Vesey's Rep. 52.
Paske v. Ollat, 2 Philamore Rep. 323.
Bell on Test. Deeds, p. 96 and 142.
It has been held in England, and adopted here, that a deed in favour of the writer requires to be supported by strong evidence. There is no evidence here that the party knew the alteration made on her former deed, executed in 1807, with a codicil in 1815.
Bell on Test. Deeds, 145, and 146.
Cockburn.—There are three facts in issue, and the pursuer is bound to prove them. This is a regularly attested subscription, and there is no impropriety in a party writing a will in his own favour. To cut down the deed, the evidence must be such as would entitle you to cognosce her if alive. She had the deed in her possession, and made marginal notes upon it, so that, if she was not facile, there was no fraud; and if fraud and facility are excluded, then it was her deed. A failure of memory may be proved, but there is no proof of facility, as the facts stated do not warrant the conclusion drawn from them by the witnesses, many of whom transacted with her as a person of sound mind. The pursuers knew that she was executing a settlement, and took no step to prevent her.
Page: 457↓
Jeffrey.—It is not necessary to prove extinction of mind; it is sufficient if there was that degree of imbecility which renders it easy for interested and designing persons to impose. It is on the second issue we expect a verdict; I do not press the first, and it is unnecessary to find upon the third. Less mind may be necessary to make a will than another deed, but if there is the least advantage taken, it is in the same situation with any other deed. The witnesses swearing that she acted in such a manner as convinced them of her incapacity, is sufficient, though they had not stated any facts. The proof of facility and circumvention assist each other; it was most improper to make a deed in his own favour, and, in such circumstances, they must prove not only the deed was read, but that it was explained.
Bell on Test. Deeds, 142.
Lord Chief Commissioner.—It is not essential to prove the reading; but in this, as in other cases, it must be proved that the deed was not read. The want of certain things, however, will cut in upon a deed in favour of the person who prepares it, which would not affect a deed in favour of a different person.
When the case was opened for the pursuer, it was stated as if the deed by Mrs Thomson
Page: 458↓
(To the Jury.)—The first point here, is the meaning of the issues, and I shall simplify the case by clearing away the rubbish, and then stating the evidence as applicable to the issues.
The last issue was meant to try a case of pure unqualified fraud, and as there is no evidence of this, you may find for the defender.
The first issue may apply either when a deed is void, from the want of something required by law, or where there is a want of mind in the subscriber, as in a case of insanity or idiocy.
This is not a case of unqualified incapacity; and, therefore, I am clearly of opinion, that, according to the right understanding of the first issue, as applicable to this case, the pursuer has not made out his case either on the first or last issue. But, on the second issue, there is a case for grave and serious consideration. There are two questions in this issue; the first is a question of fact, the other is a mixed
Page: 459↓
The second is a mixed question of law and fact, and you are to apply the fact to the law, as explained by the Court. The facts of the pursuer being the writer and instigator of the deed, and that he is more favoured than by the former deed, are not sufficient to cut down a regular probative deed.
To undo a probative deed, there must be imposition, at least imposition sufficient to operate on the state of the granter's mind; and to undo such a deed, facts and circumstances less strong will be held sufficient where the person favoured is the confidential agent of the party.
His Lordship then stated the nature of the evidence, and that several of the witnesses, though he held them admissible, might speak under the influence of an opinion, that their legacies would be more secure, provided this deed was set aside.
There is no doubt that a different degree of mind is necessary for transacting ordinary
Page: 460↓
She seems to have lost her memory as to recent events; but many persons in this situation, if the mind is roused, have sufficient memory and mind to execute such a deed as this.
Is the inference from the facts that there were no instructions? (and verbal instructions were sufficient,) or are you to hold that, having
Page: 461↓
The law will sustain this deed, unless you are satisfied that there was fraud and circumvention operating upon a mind which was incapable of understanding the subject when directed to the point. If your opinion is in favour of the defender, you may find for him, but if for the pursuer, you had better find in terms of the issue.
Verdict—On the first and third issues for the defender, and on the second issue for the pursuer.
Counsel:
Jeffrey, Skene, and G. G. Bell, for the Pursuer.
Moncreiff, Cockburn, and Ivory, for the Defender.
Solicitors: (Agents, Gibson and Oliphant, w. s. and William Dallas, w. s.)
Dec. 30.
A new trial granted, it being doubtful whether the Jury had well considered part of the evidence which was material.
Cockburn applied for a rule to show cause why there should not be a new trial, on the ground that the verdict on the first and second issue was inconsistent.
That it was supported by interested witnesses, and by a trustee; that there was no prior subsisting deed; that it was against
Page: 462↓
Lord Chief Commissioner.—We grant the rule. The distinction taken by the Court was, that the witnesses were not interested, but might be under influence. The point as to the deposition of the haver proving written instructions, may also be discussed.
Jan. 13, 1825.
Yule, 28th February 1755. M. 16765.
Sim v. Simpson, 9th Feb. 1793. M. 16781.
Reid v. Gardym, 10th July 1813, and Cowan v. Cowan, 10th July 1813.
Jeffrey.—The objection of inconsistency is not to the verdict, but the issues, and a new trial of them would do no good. Incapacity and fraud are the grounds in the summons, and this case requires the union of the two. But the chief reliance is on the alleged interest of the witnesses. But this rests on a mistake, as Mrs Thomson left her property to the longest liver of her sisters, and Miss Jane Clark is now dead. It is said that deed was revoked, but there was a prior one of the same import, which revived on the revocation of the other. The trustee did not act, and a nominal party is an admissible witness. In Cowan's case, the witness was a real defender, and in Pentland's,
Page: 463↓
Scott v. M'Gavin, Vol. II. p. 494.
The examination of the haver does not prove any thing, but merely entitles the party to produce secondary evidence, if the writing is not recovered.
Bell on Test. Deeds, 142.
2 Philamore, 324.
The Court ought not to interfere, as there was evidence on both sides. It cannot be said there was no evidence of facility and fraud sufficient, when combined with the facility, to cut down this settlement.
Jan. 14, 1825.
Moncreiff.—We do not admit that the prior deed would revive, and Lord Fife was found entitled to pursue a reduction of a deed in similar circumstances. The trustee did act, and none of the authorities are in point. Yule's case is that of a tutor, and is stated to differ from a trustee. Pentland's was not decided, and Cowan's is too strong a case for the pursuer, and seems not sound law.
Scott v. M'Gavin, Vol. II. p. 494.
Smith v. Knowles, ante p. 419.
Recovering a writing, and entitling the party to give secondary evidence, is not the only object of the examination of a haver—it may also establish that the paper existed at a particular time. In M'Gavin's case, there is an indication of opinion that the haver must be put in the box, but that cannot apply to a party, and this party is dead. In Knowles' case at
Page: 464↓
Whyte v. Clark, Vol. I. p. 233.
There was no evidence of facility, of a liability to be imposed upon, or of fraud. The real evidence is to be taken, rather than the testimony.
Feb. 9, 1825.
The Court delayed for the purpose of consideration, and the judgment was delivered this day.
Lord Chief Commissioner.—A new trial was moved for in this case, on the grounds, that the findings on the different issues are inconsistent—that the deposition of a haver was not received as evidence—that certain legatees, who were alleged to have an interest, were received as witnesses—and that the verdict is contrary to evidence.
On the discrepancies of the findings, it is only necessary to look at the different issues to be satisfied that the finding on any one of them gives a clear right to judgment, unless it is set aside for other reasons.
Vol. II. p. 494.
As to the deposition of the haver, it is inadmissible to prove a fact in a cause, as a haver is called to produce writings, not to speak to facts. It was so decided in this Court
Page: 465↓
The objection to the trustee as a witness, has nothing in it, as he had no benefit from the trust—had ceased to be a party to the cause —and would not be liable for the expence.
But the admissibility of the legatees as witnesses is a question of great consequence to the law generally, as well as to this cause. This objection is founded on their having an interest, and that interest consisting in a right to certain legacies said to depend on the success of this reduction. But the fact is, that this reduction, if successful, only brings forward another deed, a holograph codicil, which must also be set aside.
I felt great anxiety when I had to decide this case at the trial. I was then of opinion, that the expectations of the witnesses might have influence on their minds, but that there was not such an interest as in law disqualifies a witness. But that the influence was such as affects the credit, not the competency, of a witness. I have given the subject much consideration since; have looked into all the authorities and text doctrine on the subject; and I am fully satisfied that the decision at the trial was right,
Page: 466↓
Crisp v. Eynor, 1 Bur. Rep. 393.
Still, after very mature and repeated consideration, the Court have come to the opinion that, in the circumstances of this case, it ought to be tried again. I have attentively reviewed all the cases where New Trials have been granted, because the Jury may have drawn an erroneous conclusion from the evidence; and I am of opinion, that, consistently with those
Page: 467↓
In this case, the Jury may not have attended to the direction given them, that, by the law of Scotland, a drawer of a deed may take property under it. But the main ground is this, that the documentary evidence, which was most important, was not sufficiently weighed by the Jury, so as to make it certain that they had given the true effect to it.
There were here two descriptions of evidence, parol and real. The purport and tendency of the parol evidence was to show a weakness in Mrs Thomson's mind, and also a
Page: 468↓
Lord Pitmilly.—I have paid much attention to the objection to the six witnesses, and have come to concur in the opinion delivered, that it is not a reason for granting a new trial, and my opinion rests on the grounds that have been stated. To disqualify a witness, the interest must be certain and present, not contingent; and, in this case, when we take all the deeds, it is impossible to say that the witnesses would profit by the success of this reduction.
I was startled by the observation, that a witness had said there was the same incapacity in Mrs Thomson at the date of the codicil in 1815; but that goes to affect the credit, not the admissibility of the witness. We are not
Page: 469↓
As to the admission of the evidence of the trustee, I also completely concur. The objection to him was, that he is a trustee and defender. Being nominally a trustee, is not a good objection; and, from the first, he protested against being held a defender. If he were liable for expences, that might be a good objection, but his protest saves him. Being only a nominal trustee, I am quite clear that it was right to admit him.
As to the deposition of the haver, it is a point of general importance, and fit to be brought before the Court; but I have a clear and decided opinion, that it was right to reject the deposition of the haver.
This is founded on the history and the limited nature of the examination of a haver. In the early period of our law, when a person
Page: 470↓
If the writing is produced, that is sufficient; but if the party wishes to prove the way in which the writing was got, the haver ought to be put into the box and examined, if
Page: 471↓
On the other point, I quite agree with your Lordship.
Lord Gillies.—I concur in the opinion delivered. The most important point here, is the admission of the witnesses. Undoubtedly, at first sight, these witnesses have an interest; but the answer is complete, that if this deed is reduced, another starts up, and being holograph, it does not seem challengeable on any ground. But whether it is challengeable or no, the point of law is the same. Put the case, that the witnesses prove the case, and the deed is cut down, still they take nothing by the reduction. Unless this is the rule, I do not know where it may stop; for, even in the case
Page: 472↓
On the point as to the examination of the haver, I concur with Lord Pitmilly. Our practice has for long been too loose, but this arises from the manner in which proofs have been taken. But, in the present case, it is clear, that examining a party in this way, makes it an oath of reference. A party may be called as a haver, but the questions must be limited to whether he has the paper, or knows or suspects where it is? and it is incompetent to ask whether such a paper existed. I am decidedly of the same opinion on this point.
I am also, upon the whole, of opinion, that a new trial ought to be granted on payment of costs.
When the verdict on one of several issues exhausts the case, it is unnecessary for the Jury to find upon the other issues.
Moncreiff.—May we ask whether all the issues go again to trial?
The Court suggested, that it was better that it should go on one issue, and that this might be done of consent.
Jeffrey.—The motion applies to all, but we
Page: 473↓
Lord Chief Commissioner.—If the first issue had stood alone, it would have been competent, under it, to try whether the deed was not good on the ground of incapacity, or of facility and circumvention, or of fraud,—as a deed that is void on any of these grounds is not the deed of the party.
New Trial.
Present,
Lords Chief Commissioner and Pitmilly.
1825, March 14.
The legatees again admitted as witnesses.
On this day, the second trial proceeded, and the same objection was made to the witnesses as at the first, on the ground of interest.
Lord Chief Commissioner.—I take it down that this, and all the other legatees, are objected to, as interested under the will. At the first trial, the same objection was taken. I then ruled that they were admissible, but that their credit was subject to observation to the Jury, as they may be biassed, though they
Page: 474↓
Incompetent to give evidence of the good character of a defender.
It was proposed to give evidence of the good character of the defender to meet the charge of fraud made against him.
Lord Chief Commissioner.—It is incompetent to give evidence in a civil action of the character of the defender; and it has been several times so decided in this Court.
Skene opened the case, and stated, that the parties had agreed that the return by the Jury should be on the first issue only; and said, That a man of business, executing a deed in his own favour, was bound to show specific instructions.
But the main argument is one in law upon which I address myself to the Court. It will be said, that this being a writing regularly tested in terms of the statute 1681, c. 5, it must be held the will, unless the contrary is proved. But the circumstance of the party acting as agent, alters that presumption. The
Page: 475↓
Kilpatrick v. Ferguson, Nov, 21, 1704. M. 12061.
Petrie v. Lithgow, Nov. 15, 1735, M. 15941.
Wills v. Middleton, 13 Vesey, 52.
2 Philamore, 323. Bell on Test. Deeds, 139.
Steel's Case.
The writer being the person favoured, is not a nullity, but affords a presumption against the deed, both here and in England.
In this country, the deed, if executed in suspicious circumstances, must not only be read, but explained; and the instrumentary witnesses ought to be able to prove that it was explained.
Moncreiff agreed that the return should be made on the first issue, and said, The ground insisted on is facility, or an easiness, or liability to be imposed upon, but this must be combined with proof of fraudulent circumvention.
This is a pure case of fact, and I was surprised to hear it said to be a question of law,—it is a question of the incapacity to make a will, which is the most favoured deed.
Mrs Thomson must be held to have known the contents, as she had it in her possession, and made several holograph alterations upon it. The want of instructions, even if proved, is no nullity in the deed. There were written instructions, and we examined Miss Jane Clark to recover them.
Jeffrey.—Does Mr Moncreiff mean to say
Page: 476↓
Lord Chief Commissioner.—What I understood him to say, was, that, besides the will, there was a note taken down by the defender, and given by him to Miss Clark. He may state that she was examined for the purpose of recovering this paper, but is not entitled to draw any conclusion from this, as to what the paper contained.
Jeffrey.—It is proved that there was a certain failure of mind, and if any advantage was taken of her, the two are sufficient. It may be a question whether it is not a nullity, when the writer is the person favoured, as that defeats the provision of the statute. The cases referred to being cases in evidence, cannot bind you, but they show the principle with more weight than by our stating it.
Lord Chief Commissioner.—The parties have agreed that you should return a verdict on the first issue only, and it is quite sufficient to meet any of the cases which are embraced by the other two; for if you are of opinion that it is made out that the defender took
Page: 477↓
You may throw pure fraud and total imbecility out of view, as the pursuer does not hold either to be proved in this case.
The question then is, whether the degree of facility, together with the imposition or imposture proved in this case, is such as to render this not the deed of Mrs Thomson? This is a deed probative in law—it has all the circumstances about it which the acts of Parliament require, and must stand, unless proof is laid before you that it has some defect.
In this case, the defect alleged is weakness of mind in the granter, coupled with imposition. The proof of the first, is, by the opinion of those who frequently saw her, and by proof of facts; the proof of the other rests on the situation in which the defender stood in being the writer of the deed, and the person benefited.
The proposition laid down by Mr Skene is not a proposition in law, but was properly stated as a ground of judging of the evidence. By law, the defender may take by the deed;
Page: 478↓
With respect to the argument upon the acts of Parliament, we are both of opinion that, if we construed the acts according to what counsel contend for, it would be repealing the acts, and rendering the deeds executed under them null.
It is not contrary to the law of Scotland for a person to make a deed from which he is to take a benefit; but it is said that there are no written instructions. Taking it that there were no instructions for the deed of Mrs Thomson, the defender might have rested the case on what took place after the deed was in her possession. It is said there is suspicion in such a
Page: 479↓
There was no attempt on the part of the defender to keep possession of the deeds, and there is a power of revocation in them.
The question is, whether the defender operated on her mind, so as to induce her to do a thing which a perfect mind would not have done?
His Lordship then commented on the documentary evidence, and the manner in which it was written, and said, the Jury must consider
Page: 480↓
The case made out is, that this was an old woman with a certain degree of failure of mind—that a deed is framed without previous instructions—that the defender drew deeds for the other sisters at the same time—that they all contained a power to alter—that that power was understood and exercised by Mrs Thomson—that the clause which is objected to does not seem more difficult to understand than the other—that she continued to make alterations down to 1816; and the question is, whether it is right for you to conclude that she had not the power of exciting her mind so as to understand this clause? If there had been previous instruction, there could not have been a question; but we must now judge of whether there was such, by the subsequent transactions. If you think she must have seen the clause, and that there was not such imbecility as to prevent her from understanding it, then it was her deed; but if it was an imposition on a frail mind, then it was not her deed; and the law is, that the evidence to reduce a deed must be clearly made out, though, in this case, it is to be weighed with
Page: 481↓
Verdict— “For the defender on the first issue.” *
_________________ Footnote _________________
* A minute was given in, agreeing that a verdict on this issue should be held to exhaust the question.
Counsel:
Jeffrey, Skene, and G. G. Bell, for the Pursuer.
Moncreiff, Cockburn, and Ivory, for the Defender.
Solicitors: (Agents, Gibson & Oliphant, w. s., and Wm. Dallas, w. s.)