Elizabeth Ralston or Allison - Solicitor General (Campbell) v. John Rowat - Follet - M'Neil [1833] UKHL 6_WS_468

UKHL
Elizabeth Ralston or Allison - Solicitor General (Campbell) v. John Rowat - Follet - M'Neil
[1833] UKHL 6_WS_468 · 1833-07-10
In a reduction of a deed of settlement instituted by a party who had been served heir to the grantor, he adduced a witness who deponed that he considered himself a nearer heir than the pursuer; that he had intimated to the defender his intention to challenge the deed, and although he did not obey a charge which he got to enter heir he reserved his right to do so; that he believed he had not been served; that his mother was third cousin of the grantor, and he was grandson of the daughter of the grantor's ancestor, whose marriage he had not yet been able clearly to prove, although he had not yet made all the exertion in his power to do so; that he had nothing to do with the present case, but that, although he had not made up his mind to do it, he might challenge the deed, if he proved his propinquity; that he certainly did not withdraw his claim as heir at law, and had not renounced it in favour of the pursuer:—Held (reversing the judgment of the Court of Session), that he was a competent witness.The appellant, as one of the heirs-portioners of provision and of line served and retoured to the deceased John Allan of Ellsrickle, brought against the respondent an action of reduction of a deed of settlement alleged to have been executed on the 19th August 1829 by Allan, in favour of the latter, on the ground of informality in

Page: 469 ↓

“Whether the disposition and deed of settlement, No. 7. of process, dated 19th August 1829, sought to be reduced, is not the deed of the late John Allan of Ellsrickle?”
“Whether on the said 19th day of August 1829, the date of the said deed, the said John Allan was on death-bed?”
The case came on for trial (18th July 1832) before the Lord Justice Clerk and Lord Mackenzie and a Jury, when the appellant proposed to adduce as to both issues Dr. Robert Buchanan, a surgeon in Dumbarton. On being examined in initialibus by the respondent he “declared that Mr. John Kennedy, writer in Glasgow, was his agent in December 1829, and that he Dr. Buchanan as heir-at-law desired the said John Kennedy to intimate by letter to Mr. John Leslie, the agent for John Rowat the defender, his intention to challenge the said deed; and the said witness read the said letter to the Court, and which letter is in the terms following: viz.—“Glasgow, 2d December 1829.—Dear Sir, I am directed by Dr. Buchanan of Dumbarton to intimate to you, as agent for Mr. John Rowat of Whiteshawgate, that his (Dr. Buchanan's) not obeying the charge given him on the 3d ult. will not be held as any acquiescence in the validity of Mr. Rowat's title as disponee of Mr. John Allan, which title he accordingly reserves to himself to challenge and set aside, as well as to enter heir to the deceased Mr. Allan when he shall see it expedient to do so. I am, &c.” And being cross-interrogated, he declared that he could not say whether any step had been taken. Some inquires had been made,

Page: 470 ↓

On this the respondent objected that he was inadmissible, and the Court sustained the objection. The appellant excepted to the opinion, and declined to proceed with the cause, when the jury found for the respondent; and the Court, on 27th February 1833, refused a bill of exceptions.

Page: 471 ↓

Mrs. Allision appealed.Appellant .—There is no evidence on the record to show that Dr. Buchanan at the period of his being called as a witness had any interest whatever in the issue. It is admitted that the whole facts out of which the interest is said to arise are contained in the witness's initial examination, as embodied in the bill of exceptions, and that unless his rejection is justified by the facts therein set forth it cannot be justified at all. But assuming all the statements in that initial examination to be true, they do not prove that Dr. Buchanan had any interest whatever in the issue. They do not even amount to proof of a belief or opinion on the part of the witness that any interest existed. The substance of the witness's statement is, that the late Mr. Allan of Ellsrickle was a third cousin of the witness's mother, the connexion being deduced through a person of the name of John Allan, who was a writer in Glasgow in the year 1725, and who had a daughter, Mrs. Macfarlane, who was the witness's grandmother. There is no statement of the relative degree of propinquity in which the appellant stands to the deceased, so as to make it appear on the record that the appellant's connexion with the deceased is more remote than that of the witness, unless it be considered that this is afforded by the witness's statement,—“that he considers himself” as standing in a nearer degree. But it is not necessary for the appellant to rest any thing on this defect; because, as the interest of Dr. Buchanan does not depend on the degree of natural relationship in which he may stand to the deceased, but on his possessing the status of lawful heir, it is of no importance whether his degree of relationship

Page: 472 ↓

Page: 473 ↓

But even assuming that his evidence established that he was the nearest lawful heir of Mr. Allan, it would not prove Dr. Buchanan to have such an interest in the issue as the law considers necessary to exclude him from being examined as a witness. The rule as to the interest that disqualifies from being a witness is substantially the same in Scotland as in England. Accordingly, the English authorities on the subject were recognized and founded upon by the Judges in delivering their opinions. The result of the authorities is, that in order to exclude a witness, his interest must be a certain, direct, and immediate interest in the issue of the cause; the test of which is, that the verdict or decree to be pronounced may be produced for or against him in a subsequent action to which he may be a party. The bias of the law is, for very obvious reasons, towards admitting witnesses, leaving the degree of credit to be given to them to be determined by the jury. “The old cases on the competency of witnesses,” says Lord Mansfield, “have gone upon very subtle grounds; but of late years the Courts have endeavoured as far as possible, consistently with those authorities, to let the objection go to the credit rather than to the competency of a witness. Accordingly, it is now fully established that in order to disqualify a witness on the ground of interest, the interest must be certain, and not contingent, and also a direct interest in the issue of the cause. It is not enough that a witness stands in a similar situation with a party for whom he is called, or that the verdict to be given may come to the ears

Page: 474 ↓

“The law looks upon a witness as interested where there is a certain benefit or disadvantage to the witness attending the consequence of the cause one way.” *
In the noted case of Bent v. Baker † Lord Kenyon is reported to have said, “I think the principle is this:—if the proceeding in the cause cannot be used for him he is a competent witness, although he may entertain wishes upon the subject, for that only goes to his credit, and not to his competency.” This accordingly has in the later practice been considered the true test of a disqualifying interest. Mr. Serjeant Peak deduced the following as the rule resulting from a variety of decisions to which he refers:—own, or the like, though it furnishes a strong argument against his credibility, does not destroy his competency.” *
“The general rule now established is, that no objection can be made to a witness on this ground, unless he be directly interested, that is, unless he may be immediately benefited or injured by the event of the suit, or unless the verdict to be obtained by his evidence or given against it will be evidence for or against him in another action in which he may afterwards be a party. Any smaller degree of interest, as the possibility that he may be liable to an action in a certain event, or that, standing in a similar situation with the party by whom he is called, the decision in that case may by possibility influence the minds of the jury in his

Footnote

* Gilb. Ev.106.† 3 T. R. 27.

Page: 475 ↓

The same principle is followed in the law of Scotland. “Interest in the cause,” says Lord Stair, “makes witnesses inhabile as to that cause, if they can gain or lose thereby. But that “fovent consimilem causam” is not a good objection; for that conjunction of interests relates to the relevancy and not to the verity of the cause.” † The law is laid down in similar terms by Lord Bankton, and has been uniformly acted upon in the later practice of the Courts.The legal test, therefore, of Dr. Buchanan's interest is, whether any verdict to be pronounced in the cause could be produced as res judicata for or against him in any subsequent action to which he might be a party? It is clear that it could not, because the doctrine of res judicata is founded on an implied contract between the litigating parties to abide by the judgment to be pronounced as final and definitive between them, and therefore can only be pleaded for or against those who were parties to the contract. ‡

Footnote

* Peake, Ev. 141.† Stair, b. 4. tit. 43. s. 7.‡ Authorities .— Walton v. Shelley , 1. T. R. p. 300; Bent v. Baker , S. T. R. p. 27; Bankton, 2. p. 645, M'Kenzie, Murray's Rep. vol. 2. p. 219, Forbes, Murray's Rep. vol. 3. p. 44; Bank. 4. tit. 25. s. 7; Campbell v. Grange , 20th March 1543, Balfour, 564. Mor. 4717; Elder v. Ferguson , 2d Feb. 1610; Mor. 14049; Clume v. Harthill , 17th Feb. 1631, Mor. 14055; Stair, b. 4. tit. 40. s. 17;a. A. v.b. B. , Mor. 14032; Glendinning v. Earl of Nithsdale, 6th and 13th Jan. 1675, Mor. 12226. 12227. 14031. and 14032; Gadgirth v. Auchinleck , 26th Jan. and 13th July 1631, Mor. 9707. 9709. 9710; Anderson v. Fleming , 9th Jan. 1695, Bro. Supp. 4. p. 297; Phillips, vol. l. p. 53; Peak.; Britton, Mur. Rep. vol. 4. p. 46. Campbell, ibid. 176, Clark, ibid. S. p. 452.

Page: 476 ↓

Respondent .—The examination of Dr. Buchanan established—1st. That he was reputed to be the heir of law, or one of the heirs-at-law of Mr. Allan, and in that character had been regularly charged to enter heir. 2d. That he did not disavow that character, but believed himself to be a nearer heir than the appellant. 3d. That when charged to enter heir he reserved to himself to take that step, and to challenge the deeds of Mr. Allan when he should see it expedient to do so. 4th. That he had taken certain steps with a view to the establishing of his right. 5th. That he had not relinquished his purpose of challenging the deed, and at that moment considered himself the true heir. 6th. That unless his grandmother was illegitimate, which is not to be presumed, he is a nearer heir than the appellant. Now according to the rules and principles of the law of Scotland, a clear objection of interest arises sufficient to exclude the witness. The law of Scotland recognizes a variety of grounds for excluding witnesses. Relationship within certain degrees is recognized as a ground for excluding witnesses, because the law presumes that their minds will be biassed in favour of one side. Agency and partial counsel are recognized as grounds for excluding witnesses on the same presumption, and because they are indications of zeal and interest on one side. Ultroneousness, or coming forward to give evidence without the compulsitor of citation, is for the like reason recognized as a ground for excluding witnesses. Interest in the cause, so as to be affected by the issue, and that either immediately or directly, or by plain inference, such as the witness, if he be a person of ordinary understanding and forethought, cannot fail to make, is recognized as a sufficient ground to exclude the witness,

Page: 477 ↓

The proposed witness has a personal interest to promote a verdict and judgment in favour of the appellant reducing the deed of Mr. Allan. He has also a personal interest to prevent a verdict and judgment in favour of the respondent upholding the deed of Mr. Allan; and the circumstances in which he states himself to be placed, in reference to the subject matter of the cause, are such as to give, in the estimation of law, such an undue bias as to render it unsafe to admit his testimony.Lord Wynford .—My Lords, I am to move your Lordships to proceed to judgment in a case that was argued before your Lordships the other day, which was an appeal, in which Mrs. Elizabeth Ralston was the appellant, and Mr. John Rowat was the respondent. This is what is called an action of reduction and improbation; it was instituted for the purpose of setting aside a deed which had been executed by a person of the name

Footnote

* Treatise on Ev. p. 363. et seq.

Page: 478 ↓

“that John Allan was a writer in Glasgow in 1725.”

The deed proves that. Your Lordships will see the difficulty that must attend this man making out any thing like a title, on which the question of his admissibility will mainly depend:—this is the obstacle not yet removed. He had nothing to do with this law suit, nor contributed to it; but if he proved his propinquity and proved his pedigree he might challenge this deed. He had not made up his mind, and had not made any inquiry for about a year: that he certainly did not withdraw his claim as heir-at-law.”
“that a difficulty in proving his marriage occurred, and consequently of the legitimacy of Mrs. Macfarlane. That he, the witness, had made some exertions to clear this up, but certainly not all that could be made. Some records had been searched, and an advertisement put in the newspapers, for the purpose of removing this difficulty;—it has not yet been removed. He had not been served heir, he supposed; but he was perfectly ignorant of the steps necessary; that

Page: 479 ↓

My Lords,upon this it was insisted that Dr. Buchanan could not be examined as a witness, inasmuch as he stated that he had some reason to believe,—not stating any positive opinion,—but that he had some reason to believe that he was a nearer heir than the pursuer. He had instituted no proceedings however, and it was clear that he had not removed the difficulty as to the legitimacy of his grandfather; and if that difficulty could not be removed, he was no more the heir of this party than he was of any one of your Lordships. This evidence having been objected to, the two learned Judges who attended the trial sustained the objection, and he was not examined, in consequence of which the pursuer failed in his case. My Lords, under these circumstances, by a late statute that is made the statute law of Scotland, in which it is agreeable to the law of England, the parties tendered a bill of exceptions, to bring before the Court the question of the admissibility of the evidence of Dr. Buchanan. The question came under the consideration of the Court of Session, and the Court of Session decided that Dr. Buchanan was not a good witness. I have, however, the satisfaction to state to your Lordships that that judgment was not supported by the unanimous judgment of the Court; it was pronounced by a majority of three to two. There was a circumstance in the case which your Lordships know is provided for; the Lord

Page: 480 ↓

Page: 481 ↓

Footnote

* Walton v. Shelley , 1. T. R. p. 296.† Bent v. Baker , 3. T. R.p. 27.

Page: 482 ↓

Page: 483 ↓

Page: 484 ↓

Page: 485 ↓

Page: 486 ↓

Footnote

* Rutherford v. Nisbett's Trustees, 12th Nov. 1830,9 S., D., & B. p. 3.

Page: 487 ↓

Page: 488 ↓

The House of Lords ordered and adjudged, That the interlocutor complained of in the said appeal be, and the same is hereby reversed.Solicitors: Alexander Dobie,— George Webster, Solicitors.