Dundonnell Cause, Second Trial: Report of the Trial by Jury, Thomas M'Kenzie, Esq. Against Robert Roy, Esq. W.S., in the Court of Session at Edinburgh, 4th January 1831 and Four Following Days

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New North Briton Office, 1831 - Estates (Law) - 192 pages
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Page 127 - ... and that as one test of such incapacity, the jury were at liberty to consider whether he was capable of understanding what he did by executing the deed in question when its general purport was fully explained to him.
Page 129 - Now then commences the most important branch of the case — the origin of the act itself — the proof of which act (from the view already taken of the history) requires to be clear and direct. There are indeed some subsequent grounds of suspicion which reflect back, upon this part of the transaction, additional reasons for examining the evidence with vigilance and for requiring strict proof. The Court, under the circumstances already referred to, cannot accept opinions and inferences and conjectures...
Page 8 - ... to the following deed .. — " In which lands and others the said Kenneth Mackenzie bound and obliged himself, his heirs and successors, to infeft and seise himself in liferent, and the heirs and others above-mentioned in fee ; and he further bound himself and his successors to make payment to the said Isabella Colina Roy, yearly, during all the years of her life, not only during the subsistence of the said marriage, but after his decease, in case she should survive him, a free liferent annuity...
Page 18 - I hereby sell, alienate, and dispone from me, my heirs and successors, to and in favour of the said...
Page 18 - Spouses, with mutual advice and consent foresaid, hereby forever dispense, and declare the same to be as valid and effectual to all ends and purposes, as if an actual and formal delivery had taken place, any law or practice...
Page 56 - I have no more doubt than I have of my existence that it was yourself who made that uproar with the girl at the tavern where we lodged, though I could not but give you credit for your presence of mind in throwing it upon the clergyman. But whether the matter lies with you or him is of no consequence. You can take it upon you and lay up treasure in heaven.
Page 129 - ... where the party frames the instrument for his own advantage and benefit, every presumption arises against the transaction. As in the case of an interested witness, it is not necessary to prove falsehood; — a court of law will not hear him at all; — so in the case of such an executor, it is not necessary to prove fraud and circumvention — he must remove the suspicion by clear and satisfactory proof.
Page 18 - But declaring, that this deed, in so far as the same shall not be expiessly revoked or altered by a writing under my hand, shall have the effect of a delivered evident, though found in my repositories, or in the custody of any other person, undelivered at the time of my death...
Page 129 - The cases thus show how extremely jealous the law is to protect the unwary against undue influence and control. . Where that relation of confidence exists, and where the party frames the instrument for his own advantage and benefit, every presumption arises against the transaction. As in the case of an interested witness, it is not necessary to prove falsehood ; — a court of law will not hear him at all. So, in the case of...
Page 129 - Sen. 259. transaction. As in the case of an interested witness, it is not necessary to prove falsehood; — a court of law will not hear him at all ; — 'So in the case of such an executor, it is not necessary to prove fraud and circumvention — he must remove the suspicion by clear and satisfactory proof.

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