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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Larkin v. M'Grady [1874] ScotLR 12_138 (8 December 1874)
URL: http://www.bailii.org/scot/cases/ScotCS/1874/12SLR0138.html
Cite as: [1874] ScotLR 12_138, [1874] SLR 12_138
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SCOTTISH_SLR_Court_of_Session
Page: 138↓
Court of Session Inner House First Division.
v.
Lunatic
Facts:
Held that a person who was cousin-german of the lunatic, and immediate younger brother of the nearest agnate, had a good title to sue out a brieve of insanity.
In a cognition of insanity in which the pursuer and claimant was not the nearest agnate, the Jury delivered a verdict in which they cognosced in terms of the brieve, found that the pursuer was not nearest agnate, nor the heir-at-law or next of kin of the respondents, and that A was the nearest agnate, and was of lawful age. Held that this was not one of those cases in which, in terms of the provisions of section 6 of the Act of Sederunt of 3d December 1868, no other verdict than one of Not Proven could be returned.
This was a Bill of Exceptions in a cognition of insanity in which Edward Larkin was pursuer, and Edward M'Grady was respondent. The Bill of Exceptions was in the following terms:—
“Whereas a brieve from Chancery, dated the 23d day of September in the year 1874, was presented to the Lord President of the Court of Session, commanding him in the Queen's name to inquire whether the said Edward M'Grady, respondent, is insane, who is his nearest agnate, and whether such agnate is of lawful age:
And whereas, on 20th October in the year 1874 the Lord President appointed the said Edward Larkin, pursuer and claimant, who claimed the office of curator, to lodge his claim to the said office within eight days, and the said Edward M'Grady, or other party claiming to appear as respondent, to lodge answers, if so advised, within eight days thereafter:
And whereas, at Edinburgh, on Monday the 23d day of November in the year 1864, before the Right Honourable the Lord President of the Court of Session, the said brieve came to be tried by a special jury; on which day came there as well the said claimant as the said respondent by their respective counsel and agents; and the jurors being called, also came and were then and there in due manner empannelled and sworn to try the said brieve.
And upon the trial of the said brieve, the counsel for the claimant having in his opening address to the jury admitted that the claimant is not the nearest male agnate, but only the younger brother of the nearest male agnate, and that he is neither the heir nor one of the next of kin:
Counsel for the respondent contended—
(1.) That the claimant had no title to purchase the brieve, and the jury ought therefore to be discharged, or directed to find a verdict of not proven;
(2.) In respect of the above admission, and of the provision of section 6th of the Act of Sederunt, 3d December 1868, no other verdict than one of not proven could be returned.
The Lord President allowed the trial to proceed, reserving the effect of the above objections for the consideration of the Court.
Page: 139↓
Whereupon the counsel for the respondent excepted to the course adopted by the Lord President of allowing the trial to proceed reserving the effect of the above objections.
And evidence having been adduced for the claimant, and afterwards for the respondent, and their respective counsel having addressed the jury, and the Lord President having charged the jury, the said jury did thereafter deliver a verdict, which was noted by the clerk of Court in the following terms:—
The jury ‘cognosce’ in terms of the brieve; but find that Edward Larkin is not the nearest agnate, neither is he the heir-at-law or next of kin of Edward M'Grady; and that Patrick Larkin, miner, Hamilton, is the nearest agnate, and is of full age.”
“Whereupon the said counsel for the respondent did then and there propose the foresaid exceptions, and requested the said Lord President to sign this Bill of Exceptions, according to the form of the statute in such cases made and provided; and the said Lord President did sign this Bill of Exceptions on the 2d day of December 1874, in the 38th year of Her Majesty's reign.”
It appeared that the claimant was immediate younger brother of the nearest agnate, and cousingerman of the lunatic.
The respondents argued—(1) There was no authority for saying that, failing the nearest agnate, any person except one of the nearest of kin, could sue out such a brieve. Distant relations could not do so. Even if near relations, who were not next of kin, could sue, it must be because they had an interest to do so, and the interest which was necessary was an interest in the property. The claimant in this case was not one of the next of kin, nor the heir, and he had no interest in the property—therefore he had no title to sue. (2) In terms of section 6 of the A. S. of 3d December 1868, the whole heads of the brieve not having been answered by the Jury in favour of a person claiming in the character of nearest agnate, the verdict must be entered as Not Proven.
The claimant argued—The whole authorities pointed to this, that any relation of the insane person could sue such a brieve. In this case the claimant was a near relation, and undoubtedly had a title to sue. In regard to the second point the A. S. did not contemplate such a case as this, but the case of the nearest agnate suing. The claimant did not claim in the character of nearest agnate; he only averred his relationship. The important point looked to in the Act was an affirmative answer to the three heads of the brieve, and in this case that condition was complied with.
Authorities— Bryce v. Graham, 25th Jan. 1828, 6 S. 425; Balfour's Prin., p. 433; M'Allister, 6 S. 440; Fraser (Parent and Child), p. 536; Stair, 1. 6. 25: Act 1585, c. 18; Inglis, 1701, 4 Brown's Sup., 517; Bonnar, M. 6285; Moncrieff, M. 6286; Bell's Prin., § 2609; Stark, M. 6291; Gartsherrie, 5 Brown's Sup., 745, 5 W. & S., 745.
At advising—
I am clearly that it was the right and proper course to allow the trial to proceed under reservation of the objections. As this is sufficient to dispose of the bill of exceptions, I in the meantime limit my observation to that point.
It is, however, expedient to dispose of the other matters which have been raised in this discussion.
The Jury, under my directions, returned a verdict in this form:—
“The jury ‘cognosce’ in terms of the brieve but find that Edward Larkin is not the nearest agnate, neither is he the heir-at-law or next of kin of Edward M'Grady; and that Patrick Larkin, miner, Hamilton, is the nearest agnate, and is of full age.”
The question is, whether this verdict ought to be put in such a shape in answer to the three heads of the brieve. The respondents say that it cannot for two reasons. In the first place, they say that the claimant has no title to purchase the brieve, and that the Jury ought to have been discharged. In the second place, they say that no such verdict could be returned in view of the provisions of the 6th section of the Act of Sederunt of 3d December 1868.
On the first of these points I have arrived at an opinion in favour of the claimant; the result of the whole authorities is that a brieve can be purchased and prosecuted not only by the next agnate, but by any one having interest if in the position of a near relation. It is not necessary to determine how far that term may extend, but if the claimant is a cousin to the person to be cognosced, and immediate younger brother of the nearest agnate, he is certainly in the category of near relations. I am therefore of opinion that the title of the claimant is good.
In regard to the second point, there is no doubt some difficulty under the sixth section of the Act of Sederunt. The section is in the following terms:—“When the jury return their verdict, affirming the whole heads of the brieve, it shall be noted generally ‘cognosce,’ but when the jury do not affirm the whole heads of the brieve, the verdict shall be noted generally ‘not cognosce,’ unless there be any special finding regarding the person claiming in the character of nearest agnate (in which case the clerk shall make such note as the presiding Judge shall direct), and the jury shall then be discharged. And it shall be the duty of the clerk thereafter to make out and subscribe a formal writing, embodying the verdict, and answering the different heads of the brieve, shall be returned to Chancery, if the several heads of the brieve are affirmed, but not otherwise. And if the whole heads of the brieve are not affirmed by the jury in favour of the person claiming as nearest agnate, then the formal writing made out and subscribed by the clerk shall bear that the brieve and claim are not proven, and that the claim is therefore dismissed by the jury, which formal writing shall be recorded in the books of sederunt.”
It is under the last clause that the respondent contends that this verdict should have been Not Proven, because the heads of the brieve have not been affirmed in favour of the person claiming as nearest agnate—meaning the person called the claimant in this cognition. But the claimant here has never claimed as nearest agnate. He admitted that he was not so. So it is plain that the Act of Sederunt is not intended to apply to a case of this sort at all. It was intended to apply to the case of the nearest agnate applying. In that case, if he fails to satisfy the jury on any one head of
Page: 140↓
I cannot think that a clause of an Act of Sederunt can be construed so as to destroy the title to pursue which otherwise would be good.
The Court pronounced this interlocutor:—
“The Lords having considered the Bill of Exceptions for the defender (respondent) and heard counsel thereon, Disallow the Exceptions.”
Counsel for the Claimant— Blair. Agent— John Latta, S.S.C.
Counsel for the Respondents— Balfour and Pearson. Agents— Morton, Neilson & Smart, W.S.