Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk Of Session, One Of The Reporters For The Faculty.
Subject_2 SERVICE

Of - Kennedy

Date: 24 March 1796

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On the 24th March 1796, came on the service of — Kennedy, as sister and nearest heir to Lieutenant Kennedy, her brother.

It was in limine objected, That Lieutenant Kennedy was not dead; and, 2do, That the claimant was not nearest heir, in respect that the deceased, if he was dead, had a sister elder than the claimant, which elder sister left a child still alive, who was pursuing a declarator of legitimacy before the Commissaries.

answered,—It is altogether out of shape to enter here into the question, Whether Lieutenant Kennedy is dead ? Hear our evidence, but do not say, before you hear it, that it does not prove his death.

Replied,—Let the Court find that certain evidence only is competent.

On the other point, Answered,—This matter also is matter of evidence, for the claimant must prove that she is nearest heir, otherwise her service cannot proceed.

But, 2do, It is impossible to stop the service of the claimant, upon the allegation that the objector means to prove herself legitimate: she is not in possession of that status,—her father and mother were not habite and repute man and wife ; she is therefore only in course of making out her legitimacy; and, unless she will prove that instanter, she cannot he heard. She is like an heir of tailyie pursuing a declarator of irritancy.

Replied,—The fact of the objector being the daughter of the elder sister is not denied, and her legitimacy is presumed.

Duplied,—No; as she was, ex concessis, not in possession of the status of legitimacy, the onus probandi falls on her that her father and mother are married.

There were cited, 1503, c. 94, Stair, M'Kenzie, Erskine, Bankton,—case of Mountstewart, Missinish, Burnet against Bannerman, 4 Fac. Coll., &c. &c.

The service proceeded.

In proof of the death :—

1. The London Gazette, bearing, that A. B. was appointed Lieutenant in the 65th Regt., vice Kennedy deceased.

2. The Army List, and a factory to one of the objectors, proving that Kennedy was in the 65th Regt.

3. An affidavit of Captain Clark, that he was in the 65th Regt., and that Kennedy died in Guadaloupe, the 28th December 1794.

4. The oath of Kennedy's brother-in-law, that he and all the family, from many circumstances, believed that Kennedy was dead.

Objected to the affidavit,—That it bears to be signed by Clark, before A. B. mayor of High Wycombe; but quomodo constat that Clark signed it, or that A. B. signed it, or that he is mayor of High Wycombe ?

Answered,—The attestation of A. B. proves the signature of Clark ; and, as to the signature of A. B. it might be just as well said, when an extract from the Court of Session is produced, quomodo constat that the subscription of the clerk is genuine, and quomodo constat that Sir James Colquhoun is a Clerk of Session ?

The Jury unanimously served.

There was no competition of brieves. The objection that Lieutenant Kennedy was not dead, was made by his factor j the other objection by the child.