No. 41.

OUTER-HOUSE-JURY-COURT.

Before LORD COLONSAY and a JURY.

November 26. 1851.

Reduction NAPIER v. NAPIER or SMITH and her HUSBAND.

Jury Trial-Reduction-Evidence.—In an action of reduction, on the ground of insanity and circumvention, parole proof of a transaction relating to heritable property, to which the granter of the deed under challenge was a party, although not evidence of the transaction itself, is good evidence to go to the jury on the question of capacity and circumvention.

This trial arose out of an action to reduce a conveyance of an interest in a tack of certain lands near Shotts. The following issues went to the jury.

"1. Whether the alleged conveyance, bearing to be made and Nov. 26. 1851. granted by the deceased James Napier, sometime gardener at Chantinghall, afterwards residing at West Baton, in the parish of Napier v. NaShotts, on the 4th day of May 1849, is not the deed of the said deceased James Napier?

"2. Whether the said deceased James Napier was, on or about the said 4th day of May 1849, a person of weak and facile mind, and whether the defenders, or either of them, taking advantage of his said facility, did, by circumvention, impetrate and obtain the said conveyance from the said deceased James Napier, to the lesion of the pursuer?

In the course of the trial, it was proposed by the defender to prove by a witness, that sometime prior to the date of the deed in question, viz., the 6th December 1848, the transference of the lease and its terms had been discussed in his presence by the granter of the deed and the defenders, and the money then paid over by the latter.

Patton (with whom Wood) for pursuer, objected. It is proposed to prove by a witness an alleged contract or agreement, or rather a sale. Now, first, there is no statement of such a transaction on record. On the contrary there is a statement on record that the conveyance bears an acknowledgment of the money as instantly

pier, &c.

Nov. 26. 1851. paid over on the 4th May, which is its date. Next, a contract in Napier ". Na- regard to heritable subjects must be proved scripto; parole eviv. pier, &c. dence is inadmissible.

Lord Advocate (with whom W. Ivory) for defenders. It is put in issue whether the conveyance in question was obtained by circumvention. Now our object is to prove that the transference of the lease was not a new idea; and next, as the capacity of the granter is called in question, that he had capacity to discuss this matter of business, &c.

LORD COLONSAY.-I think the evidence must be received. The enquiry proposed is an enquiry into the capacity of the granter, and has not for its object to shew that there were various transactions between the parties. The issues being tried are as to his capacity, and whether or not he was circumvented. Is it not an important element in determining these questions that at a period previous to granting the deed under reduction the granter discussed the transaction? That is surely germain to the question whether the deed was obtained by circumvention. Further, whether he deported himself intelligently on the occasion, and shewed a knowledge of his affairs, will go to throw light on the question of capacity. We have it relied on by the pursuer as a piece of evidence, that the granter accepted a price totally inadequate to the value of the subjects. Now, if at the time when he was quite capable, he formed an opinion on that point, is that not important?

The verdict was for the pursuer.

Robert Oliphant, S.S.C., Agent for Pursuer.
William Lorimer, S.S.C., Agent for Defenders.

No. 42.

OUTER HOUSE.

November 26. 1851.

Nov. 26. 1851.

Queen's Remembrancer

BEFORE LORD COLONSAY.

QUEEN'S REMEMBRANCER v. BLACKWOODS.

Process-Statute 13 and 14 Vict., c. 36—Closing Record.

DEFENCES having been lodged in this case, and the pursuer finding

v. Blackwoods. it necessary to make merely a short marginal addition to his

condescendence, which was answered by a similar addition on the Nov. 26. 1851 defences, the record was closed as a summons and defences, with Queen's Rethe usual minute on the defences by the pursuer's counsel.

LORD COLONSAY.-I think, in a case like this, where the additions are so slight, new processes may be dispensed with, and the record closed on summons and defences, although the statute does not directly authorise this course; but the pursuer's counsel had better subscribe the condescendence.

P. Shand and Ross.

membrancer

FIRST DIVISION.

No. 43.

November 27. 1851.

COLQUHOUN v. GREIG.

Process-Division of Inner-House.-Where an action had been enrolled as a First Division cause, and decree in absence opened by a note of suspension, marked Second Division: Held that the proceedings following thereupon were to be considered as still in the First Division.

This was a reclaiming note against a final interlocutor by Lord Nov. 27. 1851. Rutherfurd in an action for payment of an account. The reclaiming note appeared in the Single Bills to-day, when an objection was taken by

Macfarlane, for respondent:-This is properly a Second Division cause, and should be transferred there. The action was originally enrolled as a First Division cause by the respondent, who was pursuer in the Outer-House. He there obtained decree in absence, which decree was opened by the defender (reclaimer here) presenting a note of suspension to be reponed in terms of 1 and 2 Victoria, cap. 86, sect. 5. This note was marked and called as a Second Division cause, and all the subsequent proceedings had taken place in the suspension, and not in the original action. On a sound construction of the Act, therefore, the cause now before the Court is the suspension and not the original action, and therefore it should go to the Second Division.

Macknight and Craufurd, for reclaimer. The note of suspension was marked Second Division by a clerical error, but

Colquhoun v.
Greig.

Colquhoun v.
Greig.

Nov. 27. 1847, that does not affect the question, the Lord Ordinary having pronounced an interlocutor passing the note in terms of the Act, and appointing defences to be given in to the original action,—not answers in the suspension, which is only the statutory form of reponing. There is no similarity between the suspension of a decree in absence, and an ordinary suspension where answers require to be lodged. The respondent's argument is dangerous, because, if sustained, it would amount to this, that in every case where a pursuer has exercised his privilege of selecting one Division of the Court, the defender, by allowing decree in absence to be taken, and marking his note of suspension as in the other Division, might thus deprive the pursuer of his constitutional and statutory right.

The COURT were unanimously of opinion that this was a First Division cause, and refused the motion of the respondent.

James Macknight, W.S. Agent for Reclaimer.

Lockhart, Morton, Whitehead and Greig, W.S., Agents for Respondent.

No. 44.

FIRST DIVISION.

November 27. 1851.

Nov. 27. 1851.

MARTIN AND SIBBALD v. WILSON.

Process-Reduction-Res Judicata-Expenses.-Where an action was dismissed by the Sheriff as incompetent, but no expenses found due to the defender, and the Sheriff's interlocutor, so far as it related to expenses was altered by the Circuit Court on appeal :-Held that the defender was not entitled to plead res judicata, in respect of this judgment to a subsequent action of reduction of the Sheriff's decree.

This was an action of reduction of a decree by the Sheriff of Fife, sustaining an objection to the pursuers' title in a former Martin &c. v. action at their instance against the present defender.

Wilson.

Upon 5th April 1848, a petitory action was raised in name of Martin and Sibbald before the Sheriff of Fife, concluding against Wilson for payment of £7, 19s. 1d. To this action Wilson pleaded, as a preliminary defence, that the action was incompetent, in respect of defective instance.

The deed of copartnery between Martin and Sibbald specially Nov. 27. 1851. stipulated, that upon the death of either partner, the name of the Martin &c. v. firm should no longer be used; but that the survivor should, after Wilson. being authorised so to do by the representatives of the predeceaser, raise all actions, and use diligence necessary for recovering the outstanding accounts of the company, in his own name. In consequence of the death of Martin, the firm was dissolved, and the petitory action above referred to having been raised in the name of the firm, Wilson pleaded that the action ought to have proceeded, not in name of the firm, but of Sibbald, as the survivor duly authorised to raise such action. The Sheriff sustained the defence, but refused expenses; and this judgment, so far as it concerned the question of expenses, was appealed by Wilson, the defender, to the Circuit Court of Justiciary at Perth in October 1848. The case was heard before the Lord Justice-Clerk, who sustained the appeal, and found Wilson, the defender, entitled to expenses.

Meantime this summons of reduction of the Sheriff's decree had been raised by Sibbald in name of the firm, and had been executed in August 1848. In November Wilson lodged preliminary defences, pleading, inter alia, that the action was incompetent, in respect of res judicata, by reason of the judgment of the Circuit Court at Perth. This defence the Lord Ordinary (Cuninghame) sustained; and in the note to his interlocutor, his Lordship explained, as the grounds of his decision, that at Perth the Court, "besides adhering to the interlocutor of the Sheriff on the merits, subjected the pursuers in the expense of the preliminary defences. That was equivalent to a judgment of affirmance by the Supreme Court of the interlocutor of the Sheriff under reduction." Against this interlocutor the pursuers reclaimed.

Young and Inglis for reclaimers.-There is here no ess judicata. There was nothing appealed to the Circuit Court, but what related to expenses. The Lord Justice-Clerk, therefore, did not, and could not deal with the merits. But, assuming the interlocutor of the Sheriff to be in other respects right, he altered that part of it appealed against, and awarded expenses in accordance with the rule established by a series of decisions, that where an action is dismissed on the ground of incompetency, it carries expenses as a matter of course. The Lord Ordinary had fallen into a misconception as to what had been brought under review.