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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Millar and Husband v. Fraser. [1826] ScotJCR 4_Murray_112 (21 July 1826)
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Cite as: [1826] ScotJCR 4_Murray_112
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SCOTTISH_HoL_JURY_COURT
Page: 112↓
(1826) 4 Murray 112
CASES TRIED IN THE JURY COURT, AT EDINBURGH, AND ON THE CIRCUIT, FROM DECEMBER 1825 TO JULY 1828.
INVERNESS.
No. 17
v.
PRESENT,
Finding as to the date at which a legatee died.
An action by the daughter of a legatee under a will to recover a legacy of L. 500 left to her mother.
Defence.—No title is produced. All the legacies were paid and settled twenty years ago, soon after the death of the testator.
“It being admitted that the late Simon Fraser, Esq. of Dominica, executed a will or testament,
Page: 113↓
‘Item, I give and bequeath to my cousin, Mrs Robinson, daughter of the late Reverend Mr Fraser of Boleskine, L. 500 of like money, to be paid to her by five equal and annual instalments, without interest, in manner aforesaid;’
And it being also admitted that the said Simon Fraser, Esq. died on the 2d day of July 1802;
1. Whether the pursuer, Mrs Miller, was and is the only lawful child of Mrs Catharine Fraser or Robertson, wife of Duncan Robertson, late tacksman of Wellhouse?
2. Whether the said Mrs Catharine Fraser or Robertson was the person meant and intended by the testator in the aforesaid bequest?
3. Whether the said Mrs Catharine Fraser or Robertson survived the 2d day of July 1802? *
Whigham opened the case, and stated the facts to be proved, and that the only question was, whether this lady had survived the testator?
_________________ Footnote _________________
* The two first issues were abandoned before the trial.
Page: 114↓
Incompetent to give in evidence a writing not produced eight days before a trial, or to call back a witness examined and dismissed.
When a copy of the inscription on Mrs Robertson's tomb-stone was produced, an objection was taken that it had not been produced before the trial. It was then proposed to call back a witness who had been examined, which was also objected to.
M'Neill, in opening for the defender, said, That though the evidence for the pursuer was strong, the evidence for the defender would prove that the witnesses they had heard were mistaken. The pursuers did not insist in their claim at the time the fact could have been ascertained.
A witness admitted, who had formerly given an affidavit on the fact to be proved.
An objection was taken to a witness that he had formerly given an affidavit on the subject; but it not being denied that the defender's father had at one time promised to pay the legacy, provided Mrs Robertson survived the testator; and the affidavit having been taken to prove that fact, the witness was called and examined.
Evidence of the contents of a letter admitted, the letter having been searched for and not found.
A deposition by Mr Fraser of London was produced, in which it was stated, that by a letter the date was proved to be 1802.
Page: 115↓
Stewart v. Buchanan, and Rose v. Golian, 1 Mur. Rep. 38 and 84. Peter v. Tirrol, and Snadon v. Stewart, 2 Mur. Rep. 30 and 63.
Whigham objects, It is incompetent by parol evidence to prove the contents of a letter. This is stronger than the cases formerly decided, as this letter is traced into the hands of the defender. The letters to the pursuer, if not produced, ought to have been proved by the copy in the letter-book, and not by a witness.
Robertson v. Ferguson, 2 Mur. Rep. 304.
M'Neill.—It is proved that this letter is lost, and that it was called for. In the cases referred to the writings had not been called for; but here the defender having attempted to produce the best evidence, is not to be deprived of the contents of a letter, because it has perished.
Page: 116↓
A book admitted in evidence, though not produced eight days before the trial.
When the Inverness Register of Marriages was produced,
Whigham objects, It was not produced till yesterday, and it is by the neglect of the defender, not the pursuer, that it was not produced.
M'Neill.—It was only yesterday that we traced the witness, and we produced the book as soon as possible.
Whigham, in reply, contended, That the evidence for the defender had failed, and that Mr Fraser's letters did not prove the date of Mrs Robertson's death, but merely that Mr F. stated it.
Page: 117↓
The point is narrow in the issue, and is still farther narrowed by the evidence, as it is clear that this woman died in a month of October; and the only question is, whether it was in October 1801 or 1802? It is much to be regretted that there is no register of births, deaths, and marriages, as the want of it may in this case be productive of injustice to one or other of the parties, and much benefit arises from their being regularly kept.
There is a strong body of evidence on both sides, and it will require serious attention and discrimination to decide on which side the truth lies. The letter of Mr Fraser must be thrown out of view, and you will attend, that several of the witnesses for the pursuer merely swear to the fact of the date, without mentioning any fact confirming their recollection. On the other side, the evidence of one of the witnesses, when coupled with the register, goes far to contradict that on the other side.
Verdict—“For pursuers on all the issues.”
Counsel:
Whigham, for the Pursuer.
D. M'Neill, for the Defender.
Solicitors: (Agents, John Macandrew, s. s. c., and J. B. Fraser.)
Page: 118↓
An application was made to the Court of Session for a new trial on several grounds, one of which was, that a letter had been admitted in evidence which must have borne a false date, as it was written on paper manufactured on patent moulds, which were not invented for several years after the date. A number of affidavits of paper manufacturers were produced on both sides. The Court granted the new trial.
June 2, 1826.
Circumstances in which the Court refused to change the place of trial
When notice of trial was given for Edinburgh, an application was made to change the place of trial to Inverness.
Lord Chief Commissioner.—It cannot be laid down as a general rule that a case is not to be tried twice at the same place; but there is a great deal of weight in what Lord Pitmilly has
Page: 119↓
NEW TRIAL.
PRESENT,
1826. July 20 and 21.
Finding for the defender in a question as to the date at which a legatee died.
Whigham opened the case, and stated the facts; and that the witnesses would prove the date, not from mere recollection, but by reference to public events: That the case would be proved without the letter referred to; but that, as it had been made one of the grounds on which the new trial was granted, it would be produced, that the defender might object to it.
A soldier may state the time at which he was at home on leave of absence, without producing the books of the regiment.
A witness, a soldier, having stated that he had been at home at a particular time on a sick pass, Mr Solicitor-General insisted that the pass ought to be produced, or rather the books of the regiment.
Page: 120↓
A witness admitted who had previously made affidavit to the fact to be proved.
Another witness having stated that he had made affidavit before a Justice of Peace to the fact, by desire of the pursuer; and that he believed he was present along with others,
2. Hume, 365. 189, edit. 1800.
Robertson objects, He is not a pure unbiassed witness. Two witnesses being examined together disqualifies both. There is a sort of conspiracy.
Jeffrey.—I am not anxious either on the law or expediency; but this objection was overruled at the former trial, and I doubt if it is competent to move it now, as no objection was made to the verdict as founded on incompetent evidence. This examination took place with a view to satisfy the defender before any law-suit was instituted. If the objection is good, it must disqualify all the witnesses, as they were examined at the former trial.
Wemyss v. Wemyss, 26th Feb. 1793, Mor. 16782.
Robertson.—This is not res judicata. The action was in contemplation. In Sharp's case the objection was overruled from the necessity of the case.
Page: 121↓
That reduces the objection to this, that the witnesses were present during the examination of each other, which is very weak, especially as he is called to prove a detached fact, and not a detail, where a story might be made up.
Hope, Sol-Gen., in opening for the defender, said, That, though it was a question whether the pursuer had made out his case, there would be evidence for the defender;—that after so long delay by the pursuer the defender was entitled to the benefit of any doubt they might have;—that, in 1803, 1806, and 1807, he was informed that the legatee died before the testator, and acquiesced in the statement.
A case adjourned on the motion of a party, a juryman having stated that he could not proceed.
After producing some documentary evidence, Mr Solicitor-General proposed that the case should be adjourned, which Mr Jeffrey opposed, as not coming from the proper quarter. Lord Mackenzie stated his readiness and wish, so far as he was concerned, that the case should proceed; but a juryman having stated that he could not go on with safety to himself, Mr Jeffrey consented, and the case adjourned to the following morning.
Page: 122↓
On the following day, during the examination of a papermaker a piece of paper was handed to him by one of the jury, that he might say whether it was made on old or new moulds; on which Lord Mackenzie remarked, that this was improper, as this juryman would be proceeding on his private knowledge of the history of the piece paper, and not on the evidence.
A witness called and examined in replication.
A witness was called in replication, and Mr Jeffrey wished this done before his reply, though he stated it as his belief that it was more regular to call him after. When the witness was called he was asked upon what authority the entries were made in the record of marriages.
Incompetent to prove by parol evidence wrong entries in parish books, but competent to prove the system on which the books were kept.
Hope, Sol.-Gen.—It is incompetent in this manner to raise doubts of the accuracy of the entries. The only case on the point is a criminal one, where evidence was admitted to prove that mistakes were frequently made in apothecaries shops; but that was not held authority by Lord Pitmilly.
Jeffrey.—The person who was session-clerk in 1802 is dead; but we call this witness as having held the situation before the present one, who was called by the defender.
Page: 123↓
Jeffrey, in reply for the pursuer, said, He did not mean to conceal that this was a case of difficulty and doubt, and that the jury would have to reconcile statements apparently opposite, and in some cases to make a selection of the witnesses where the statements were irreconcilable: That the case of the pursuer was proved by witnesses who spoke to facts in which they could not be mistaken; but undoubtedly it was impossible to reconcile with this the story told by the defender's witness as to the marriage of the servant.
Page: 124↓
With regard to the letter, about which so much evidence has been given, it is in a singular situation; for it is not a funeral letter, but an answer, apologising for not attending the funeral; and there is not a distinct account of where and how it was preserved.
The testimony of the witnesses for the defender is directly contrary to that given on the other side, and I cannot point out any mode of
Page: 125↓
Verdict—“For the defender.”
Counsel:
Jeffrey and Whigham, for the Pursuer.
Hope,
Sol.-Gen.,
M'Neill, and
Robertson, for the Defender.
Solicitors: (Agents, John Macandrew and J. B. Fraser.)