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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Wilson v. Wilson. [1823] ScotJCR 3_Murray_326 (5 March 1823) URL: http://www.bailii.org/scot/cases/ScotJCR/1823/3_Murray_326.html Cite as: [1823] ScotJCR 3_Murray_326 |
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Page: 326↓
(1823) 3 Murray 326
CASES TRIED IN THE JURY COURT.
No. 31
Present, The Lord Chief Commissioner.
Reduction on the ground of imbecility.
Reduction of a disposition and deed of settlement, on the ground of fraud and circumvention, and of mental imbecility. The first ground
Page: 327↓
“Whether, on or about the 16th day of September 1817, the date of the disposition and settlement now under reduction, alleged to have been executed by the late Thomas Wilson, heckle-maker in Crosscauseway, in favour of Agnes Wilson, widow of the deceased Adam Robertson, baker in Edinburgh, and others, the said Thomas Wilson was not of a sound and disposing mind, but was in a state of mental imbecility and incapacity, and thereby incapable of understanding his affairs?”
To entitle a party to proceed to trial, in absence of the other party, he must prove notice to the opposite party, or his mandatory.
When the case was called for trial on the 20th February, the pursuer did not appear.
Maitland, for the defender.—We gave notice of trial to the known agent for the pursuer, who is also attestor for the mandatory. It is said the mandatory does not mean to act, but his appointment being a proceeding in Court, his declinature should appear on record.
Lord Chief Commissioner.—Where is proof of notice to the mandatory? The Court
Page: 328↓
Scruton v. Catto, ante p. 56.
In the absence of a defender, the case is quite simple, and when all the notices have been given, the Court has no hesitation in allowing the case to go on; because, if the pursuer does not make out his case, the defender would have a verdict. But, in absence of a pursuer, the case is different, as the defender has no proof to offer, and the verdict comes to be one in absence without evidence. This question was much discussed in the case of Scruton and Catto; and, in that case, the Jury Court confirmed the decision given by Lord Gillies, that the pursuer not having appeared, and there being no power to nonsuit, the only way to extricate the case, was to take a verdict for the defender. A Bill of Exceptions was taken to this decision, and the First Division of the Court of Session held the Jury Court right, and confirmed the judgment.
That I hold a complete case in point, and an authority upon which I should have no difficulty to allow a verdict to be taken for the defender, or to hear any evidence he may have to offer. But the difficulty here, is of a different nature, and is the same in the absence of the pursuer as of the defender. It is the want
Page: 329↓
Notice to the attestor of the mandatory is not sufficient
After consulting the Judges of the First Division of the Court of Session, his Lordship said,
I have not only seen Lord Gillies, but the other Judges, and they are unanimously of opinion, that the agent, being attestor for the mandatory, does not make any distinction in the case, as it is the mandatory who is to be looked to, as he is dominus. litis.
The rule of Court has been, that there must, at least, be service at the house of the mandatory.
Moncreiff and Maitland.—In this case, the notice to the agent was regular,—we had no reason to believe it was to be in absence, and have a right to go on and obtain a verdict.
Lord Chief Commissioner.—I do not say
Page: 330↓
This is an objection on the part of the Court, and no person has a right to go to trial in absence, without the leave of the Court; and the Court will not allow a proceeding that may do injustice.—I will not try this cause without being satisfied that the proper notices have been given, and they have not been given in this case.
It is not only my own opinion, but that of the Judges of the Court of Session, that, if both parties are present, no such notice is necessary— but that, if a party is absent, the rule is different, and notice to the attestor of the mandatory is not sufficient, as he is a mere cautioner. In the case of Beardsworth, this was held necessary, and the present is the case of an absent pursuer. In this case, the defender gives notice by proviso, and, if intimation had been made to the mandatory, I should have held it good, but I cannot hold notice to the agent sufficient.
If the mandatory intimates that he does not
Page: 331↓
At the trial, Mr Maitland stated that the mandatory had withdrawn two years ago, and that they wished to put into process the letters on the subject.
Lord Chief Commissioner.—If I thought I had jurisdiction in this matter, I would certainly proceed; but, as there is some doubt of the jurisdiction of this Court, and as the case goes back to the Court of Session, I shall take a note of it, and have no doubt that Court will proceed to the utmost, as it appears to me a piece of great misconduct on the part of the agent.
The Jury were then sworn, and his Lordship stated, that, after the deliberate decision in the case of Scruton and Catto, now final, he could only direct them to find for the defender.
Verdict for the defender.
Counsel: Moncreiff and Maitland, for the Defender.
Solicitors: (Agent for the Defender, William Williamson.)