Scottish Court of Session Decisions

The Right Honourable Charles Maitland, twelfth Earl of Lauderdale, died unmarried on or about 12th August 1884, last vest and seised in certain lands and heritages. Competing petitions for service were presented to the Sheriff of Chancery by Sir James Ramsay Gibson Maitland of Barnton, Bart., and Major Frederick Henry Maitland of the Bengal Staff Corps.

Sir J. R. G. Maitland prayed to be served nearest and lawful heir-male of tailzie and provision in special of the deceased twelfth Earl in his lands, and likewise nearest and lawful heir-male of tailzie and provision in general of the said twelfth Earl. He claimed, according to the pedigree set forth in his petition, descent from the fourth son of Charles sixth Earl, and to be nearest and lawful heir-male of James (ninth) Earl of Lauderdale and of Anthony (tenth) Earl of Lauderdale, and that he was also nearest and lawful heir-male of tailzie and provision in special of Charles Maitland (twelfth) Earl of Lauderdale.

In objections to this petition Major Maitland claimed to be descended from the fourth son of the sixth Earl, and so entitled to prevail over Sir James, whom he alleged to be descended from the fifth son of the sixth Earl. He presented a competing petition also craving to be served nearest and lawful heir-male of tailzie and provision in special of the deceased twelfth Earl in his lands, and likewise nearest and lawful heir-male of tailzie and provision in general of the said twelfth Earl.

A minute was put in for Major Maitland stating that the petitioner had presented a petition to Her Majesty the Queen, claiming the honours, titles, and dignities of Earl and Viscount of Lauderdale, which petition had been referred to the Committee on Privileges for their decision thereon, and craving the Sheriff to sist further procedure in the petition for service till the decision of the said Committee on Privileges had been obtained.

By interlocutor of 6th January 1885 the Sheriff, having heard parties on the minute, sisted further procedure for three months.

“ Note.—The destination in all the entails is

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the same, and both petitioner and objector crave service under that branch of it which is thus described, viz., ‘To the said James, Earl of Lauderdale's, or the said Anthony, Earl of Lauderdale's heirs-male succeeding and to succeed to the title and dignity of Earl of Lauderdale.’

The petitioner has presented a petition to Her Majesty claiming the title and dignity, and it has been referred to the Committee on Privileges for their consideration and report. He now moves that further procedure be sisted in the petition for service until the Committee shall have arrived at a decision.

The motion is opposed by the objector, who desires that procedure should go forward in the service as if no petition claiming the earldom had been presented to the Queen and referred to the Committee on Privileges.

It was urged that the question of succession to the title could quite competently be entertained in this Court, and that there was no reason, therefore, for delay till the Committee on Privileges should have reported.

Had no step been taken to submit the question of right to the earldom to the Committee on Privileges, I should have had no hesitation about proceeding; for there is no doubt of the competency of this Court to entertain such a question when its determination is necessary to explicate a petition for service. But now that it has been submitted to the Committee, there being no ground at present for supposing that it will not be disposed of with reasonable despatch, it would be unseemly and inconvenient that the same inquiry should simultaneously be proceeded with here.

I asked counsel for the petitioner whether he was in possession of any document showing whether or not any order had been pronounced by the Committee, but was answered in the negative. In those circumstances I do not feel disposed to accede to his motion for an indefinite sist, and have therefore limited it to three months.

Should it appear when these have expired that progress is being made, it can then be prolonged.”

The objector (Sir J. G. R. Maitland) appealed to the Court of Session.

Argued for him—There should be no delay in settling who was entitled to the estates—the proof required to make out a title to them was different from that required for the title of Earl of Lauderdale. It did not appear that no person could be served heir of tailzie and provision to the estate unless he were recognised as entitled to the title of Earl of Lauderdale. The question which of the claimants was entitled to service might go on to a decision before the Sheriff of Chancery although the Committee on Privileges were dealing with the question of the title. The lands were in Scotland, and the Scottish Courts must aid the claimants in getting their rights determined. There was nothing to prevent the Sheriff of Chancery proceeding with the competing petitions.

Authorities— Dunbar v. Sinclair, 1790, M. 7395; Earl of Banbury, 2 Salkeld 509, and 3 Salkeld 242; Ersk. i. 2, 8; Wright v. Sharp, January 16, 1880, 7 R. 460.

Replied for the respondent—The whole question was one of expediency. The Sheriff had fully considered the matter, and had decided that a sist was desirable until the decision of the Committee on Privileges had been obtained.

Authorities— Lovat v. Fraser, July 18, 1884, 11 R. 1119; Hunter v. Weston, January 31, 1882, 9 R. 492.

The only clause in the deed of entail that needs to be referred to is the destination, which is quoted in the opinion of the Lord President.

At advising—