(1723) Robertson 436
REPORTS OF CASES ON APPEAL FROM SCOTLAND.
Ex parte (a)
In a competition between two persons, claiming to be heirs to an estate, the inquest refused to retour either of them. One of the parties in an action of reduction and declarator, calls the other as a defender; a third claimant now craves to be admitted, as a defender in this action, stating himself to be in the same degree of propinquity with the other defender, which the pursuer acknowledged. The Court having refused to admit this third party as a defender in that action, the judgment is reversed, ex parte.
James Earl of Annandale died about 80 years ago, leaving no. heirs of his own body, and in default of them, his estate went to the daughters of Sir James Murray of Cockpool, paternal uncle to the said earl. The appellant, and the Viscountess of Stormont, were descended from these daughters.
The respondent laid claim to the estate of the said James Earl of Annandale, in the character of his nearest heir; and took out a brieve from Chancery for serving himself nearest heir; and gave in his claim to the inquest accordingly. The Viscountess of Stormont, appeared as a party by her counsel, and objected to the evidence brought by the respondent, as no wife sufficient to prove that he was heir, or at all related by descent of lawful issue
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a) This is given entirely from the appellant's case only, no appearance having been made for the respondent.
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( a) This is given entirely from the appellant's case only, no appearance having been made for the respondent.
The respondent thereupon brought his action before the Court of Session, for setting aside the verdict of the jury as erroneous, and to have it found, that he was nearest heir to the earl. To this action, the respondent called the Viscountess of Stormont as a party; but took no notice of the appellant, who (as he states) is the undoubted heir portioner of the said Sir James Murray of Cookpool, father's brother of the said earl, with the said Viscountess of Stormont, and so equally entitled with her in the said earl's succession.
The appellant, however, appeared for his interest by his counsel, in support of the verdict complained of by the respondent, and prayed to be heard against the respondents' claim. And the Court on the 28th of February 1722, “found that the appellant ought to be admitted for his interest.”
The respondent reclaimed, setting forth that he had not made the appellant a party; but that the action he was carrying on was of no prejudice to the appellant, the scope of it being only to set aside an erroneous verdict, given by the jury to the prejudice of the respondent; and that it would be still entire, and more proper for the appellant to appear before another jury, which would be called after the erroneous verdict was set aside, and there to object against; the respondent's claim.
After answers for the appellant, the Court on the 21st of June 1722, “altered their former interlocutor, and found that the appellant could not be admitted in that action.” And to this interlocutor the Court adhered on the 30th of the same month of June and 1st: of December thereafter.
Entered, 10 Dec. 1722.
The appeal was brought from “several interlocutory sentences or decrees of the Lords of Session of the 21st and 30th days of June, and an interlocutor of the 1st of December 1722.”
Heads of the Appellant's Argument.
Though the respondent has not made the appellant a party to the action, that was the respondent's fault and error; but this cannot hinder the appellant from appearing as a party for his own interest, and to defend in an action, the scope of which was to defeat his titles to the estate, and succession of the Earl of Annandale. Besides, by the nature of the brieve, all persons having interest are called, by what is named in the law of Scotland an edictal citation.
The respondent admitted, that the appellant had the same interest and concern with the Viscountess of Stormont, and consequently since she is a proper party to the action, the appellant must be so too. The appellant likewise admitted, that the appellant was a proper party to object to his claim before the jury, and to
Journal, 12 Feb. 1722–3.
Whereas this day was appointed for hearing counsel upon this petition and appeal; counsel appearing for the appellant, but no counsel for the respondents and the appellant's counsel being heard and withdrawn, It is ordered and adjudged, that the interlocutory sentences of the 21 st and 30 th days of June, and the interlocutor of the 1 st of December last complained of in the said appeal be reversed; and that the interlocutor of the 28 th of February, last whereby it is decreed, “that the appellant ought to be admitted for his interest” be affirmed.
Counsel: For Appellant, Ro. Dundas. Dun. Forbes.