Alexander Rintoul - Dr. Lushingto - Wakefield. v. Alexander Boyter - Lord Advocate (Jeffrey.) [1833] UKHL 6_WS_394

UKHL
Alexander Rintoul - Dr. Lushingto - Wakefield. v. Alexander Boyter - Lord Advocate (Jeffrey.)
[1833] UKHL 6_WS_394 · 1833-06-27
Circumstances in which a decree of the Court of Session, holding the tenor of a destroyed deed proved, was affirmed.

Subject_ Expenses

awarded against a defender in a process of proving the tenor.This action was instituted for the purpose of establishing the tenor of a deed of settlement, and was brought at the instance of the respondent, Alexander Boyter, against the appellant Alexander Rintoul, and Thomas Rintoul, shoemaker, in Sunderland. The deed was alleged to have been fraudulently abstracted and destroyed by the latter, and to have been of the following tenor:
“We, Alexander Boyter, grocer, Balmerino, and Helen Rintoul, spouses, from our mutual affection to each other, and with mutual advice and consent, do hereby make, constitute, and appoint the longest liver of us to be the first deceaser's sole executor and universal legator, with full power to intromit with the whole moveables and executry of every description of the first deceaser, to give up inventories thereof, and to confirm the same, and generally to do every thing in the premises competent to an executor, but

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Alexander Boyter .Charles Mather , Witness.David Myles , Witness.At the desire of the above-mentioned Helen Rintoul or Boyter, and by authority from her, who declares that she cannot write, and she having, in token of the authority given to me, touched my pen, I, notary in the premises, do subscribe for her, the before-written deed having been previously read over to the said Helen Rintoul or Boyter in presence of me and the witnesses before designed. Nil nisi verum.

(Signed) James Hunter , N. P.”

It was alleged, that after the death of Helen Rintoul in June 1829, when the settlement came into operation, that it was read, after her funeral, in the presence of her nephews (the appellant and his brother Thomas) and

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The appellant alone appeared in the Court below, and lodged defences, stating in particular that Mrs. Boyter “did not execute a settlement of the tenor mentioned in the summons,” and denying that “the said settlement was read over in the presence of the persons mentioned,” and also that any such deed was violently and fraudulently abstracted and destroyed by Thomas Rintoul.In support of the action the respondent produced a mutual testament between Mrs. Bovter and her sister Agnes Rintoul, dated 21st June 1821, (which was proved to have been used as a style by the man of business who prepared the mutual settlement between the respondent and his wife); also a deposition of the appellant's country agent in the proceedings, at the appellant's instance, before the commissary, showing that that person had for some time in 1829 been in the possession of or had repeatedly seen a copy (taken by the appellant's son) of the deed in question; and parole evidence both as to the terms of the deed and of its destination.Upon hearing the case argued the Lords of the First Division, on the 16th March 1832, pronounced this judgment:—Find the casus amissionis of the writ libelled; and the tenor thereof as libelled proved, and decern and declare accordingy: Find the defender, Alexander Rintoul, liable to the pursuer in the expenses.”
“The Lords having advised the state of process, adminicles produced, and testimonies of the witnesses produced, and heard parties by their counsel,

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Against this interlocutor the present appeal was brought.Appellant .—The proof of the tenor of the document is by no means such as to have warranted the judgment pronounced. The deed is said to have been executed on or about the 28th December 1827. It is alleged to have been a mutual conveyance by the respondent and Helen Rintoul of the whole of the property, and in particular it is alleged to have contained that clause upon which the efficacy of the whole deed depended:—
“And we dispense with the delivery hereof, and declare that these presents, though found lying beside either of us at the time of our death, or in the custody of any other person undelivered, shall be as valid and effectual to the survivor as if the same had been duly delivered.”
But as to this clause there is no proof whatever.By the judgment the appellant is subject to the whole costs of the action, while there are no grounds, either on principle or according to the practice of the Court, upon which such an award could have been pronounced. No expense has been caused by the appellant to the respondent, who would equally have been obliged to advance the whole of his proof although the appellant had not appeared. It is not even alleged that the appellant is chargeable with the destruction of the deed, and there cannot be produced any instance in which the expense of the proving of a tenor has been

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Respondent .—The respondent adduced all the evidence to support his libel which could be reasonably required or expected under the very particular circumstances of the case. This is the case of a personal deed, and as such related to a settlement of moveables only, and therefore no deed connected with it (such as an instrument of sasine) fell to be entered on record, or could be obtained from any register. The loss of the deed arose from violence; it was forcibly and feloniously taken from the possession of the custodier, in the most unusual manner, in presence of a number of witnesses. It would be preposterous if the party injured by such an act had no remedy unless he produced the scroll of the deed or some other written evidence relating to it. But adminicles were produced; for another settlement was produced, which one of the instrumentary witnesses swore was used as a form or draft of the deed in dispute. And the deposition of the appellant's own agent showed that he was at one time possessed of a copy of the deed taken by the appellant's son. These, under the circumstances of the case, were sufficient written adminicles.The parole proof adduced by the respondent was also most complete and conclusive in all points. The violent and fraudulent destruction of the will by Thomas Rintoul, in presence of the appellant's brother, who looked on without interference, was proved by an accumulation of evidence. The tenor or purport of the destroyed deed was equally clearly proved. The original execution of the will in question, and its

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The appellant was justly subjected in the costs in which the respondent was involved, by the fraudulent act of the party and his coadjutors who destroyed this will. For the appellant almost instantly after the felonious act attempted to avail himself of it by bringing all manner of actions against the respondent as in a case of intestacy. He thus adopted the fraud, if he was not antecedently privy to it. Besides, the appellant put forth a series of statements, in his defences, which were all proved to be false.Lord Chancellor .—My Lords, if I could entertain any doubt in this case, I should suggest to your Lordships the propriety of taking time to consider before you affirmed the decision of the Court below, but I entertain no doubt. In the first place, by the judicious abstinence of the learned counsel on the other points of the case, the question is reduced simply to one upon the result of the evidence before you; and the learned Judges of the Court below having made up their minds on the examination of that evidence, and having thought that sufficient to satisfy them of the facts of the loss of the instrument, and of the instrument lost being of the tenor and effect stated,—which phrase “of the tenor and effect,” as your Lordships are aware, is used in the law of Scotland in a different sense from that in which we use it—we using it to express the very words of the instrument, they using it rather to express the purport of it,—the Court below being satisfied that the instrument so lost was of the tenor and effect which the party has alleged it to be, and proved it to be, it

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There is also a little more evidence, which is not immaterial as to the conduct at least of the party here,—that is as to Thomas Rintoul, the son of the defender himself. He appears to have been sent to take a copy of the will, and I think it requires no wizard to conjecture who sent him there;—that he was sent by his father, in all probability, to take a copy of that will,—that he came back and brought it to the office of his employers, Campbell and Scott. It was taken in; but I do not go into the

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The House of Lords ordered and adjudged, That the said petition and appeal be and is hereby dismissed this House, and that the interlocutors therein complained of be and the same are hereby affirmed: And it is further ordered, That the appellant do pay or cause to be paid to the said respondent the sum of 147 l . for his costs in respect of the said appeal.Solicitors: G. W. Poole— Richardson & Connell, Solicitors.