Scottish Court of Session Decisions

Subject_1 EXHIBITION AD DELIBERANDUM.
Subject_2 SECT. I.

Competent to all sorts of heirs.

James Boyd
v.
William Gibb

Date: 20 January 1770
Case No. No 12.

In a process of exhibition ad deliberandum by a relation claiming under a remote ancestor, a proof of propinquity is required.

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James Boyd intending a challenge of Gibb's right to the estate of Pitkindie, brought a process of exhibition ad deliberandum; when it was objected, That though an apparent heir was entitled to bring such an action without any proof as to his relationship, yet as, according to the pursuer's own theory, he was a very distant relation, it was incumbent on him to shew he had a title to insist, by bringing a clear proof of his propinquity as apparent heir to the predecessor, in whose right he meant to claim.

The Lord Ordinary allowed the pursuer to prove his being heir apparent to his predecessor libelled. And the pursuer having adduced as witness Agnes and Helen Boyd, his aunts, they were objected to as incompetent, 1st, On account of their relationship; 2d, As having given partial council and advice in the cause.

In support of the first objection, it was maintained, That it was an established point an aunt could not be adduced as a witness for her nephew or niece; such being, according to Lord Stair, in loco parentum, b. 4. t. 43. § 7.; Bankton, v. 2. p. 646.; 19th June 1713, Creditors of Ormiston contra Hamilton, voce Witness. In the case, Falconer, 16th June 1747, Gordon contra Gordon, Ibidem, the objection to a witness that she was sister to the pursuer was not removed; though it was answered that she was daughter to the defender. The exception to the general rule that these were necessary witnesses, could not in this case be admitted; that exception related only to cases where, from the occult and private nature of the thing to be proved, there was a penuria; but, the view in which the pursuer regarded them as necessary witnesses, that they were the persons best acquainted with the point in dispute, evidently led to this consequence, that whenever a person was attempting to establish a falsehood, he should be allowed to adduce his nearest relation; as, in such a case, there would, no doubt, always be a penuria testium.

As to the second objection, it was said that they had interested themselves in the cause; had given information of what they knew; and had recommended or employed an agent to carry on the suit for the pursuer's behoof.

Answered; The strictness of the ancient practice, as to the rules of evidence, was now much relaxed; exceptions from the general rule had at all times been admitted when, from the nature of the case, there must necessarily be a penuria testium; and, according to Lord Stair, b. 4. t. 43. § 10. ‘ witnesses,’ even collateral relations, “ should not be rejected, unless other unsuspected witnesses could be found.” Erskine, iv. 2. 22. laid down the same rule; and the exception had been carried so far, that in the proof of a clandestine marriage, even brothers and sisters were admitted. Bankton, v. 2. p. 647. § 15. 10.

The present was a case precisely of that nature, where the severity of the law should be relaxed; the pedigree and relationship of families, especially those of an inferior rank, were seldom attended to but by those of the family itself; so that, to exclude their testimony would be a denial of the only mean of proof. The nature of the case also admitted of favour; as, in order to prevent the estate from falling to the Crown as ultimus hæres, a very slender proof of propinquity would be required.

As to the second objection, the only information they had given was in answer to such enquiries as were always allowed to be made before leading a proof; that they had not employed, but only recommended the agent; and, as to the alleged conversations with other witnesses, these were merely extra judicial, and there was no proof that any of them had been thereby either instructed or influenced.

The deposition of these two witnesses having been sealed up, the Lord Ordinary ‘Repelled the objections, and ordained the seals to be taken off,’ To which interlocutor, upon advising a petition and answers, the Lords adhered.

Lord Ordinary, Strichen. For Boyd, Lockhart. For Gibb, Macqueen. Clerk, Campbell. Fac. Col. No 13. p. 29.