Scottish Court of Session Decisions

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Cite as: [1899] ScotLR 37_56, [1899] SLR 37_56

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Wednesday, November 1. 1899.

[ Lord Pearson, Ordinary.

37 SLR 56

Bankes

v.

Anderson and Others.

(Ante, July 20, 1899, 36 S.L.R. 936.)

Subject_1Appeal to House of Lords
Subject_2Petition for Disentail
Subject_3Interlocutory Judgment
Subject_4Leave to Appeal.
Facts:

In a petition for authority to disentail, the three next heirs refused their consent, and after consenting to the usual remits, they lodged objections to the report of the man of skill upon the valuation of the estate. The respondents further made averments as to the state of the petitioner's health, as affecting the value of her interest in the estate. The Lord Ordinary remitted of new to the man of skill to report upon the objections to his report, and remitted to a medical man to report on the state of the petitioner's health. The respondents reclaimed, and moved for a proof on both points. The Court having refused the reclaiming-note, the respondents craved leave to appeal to the House of Lords, on the ground that their case would be prejudiced if the remits were exhausted and the inquiry made before they could appeal. The court granted leave to appeal.

Headnote:

A petition was presented by Miss Maria Ann List Bankes, heiress of entail in possession of Letterewe and Gruinard, for authority to disentail these estates. The three next heirs entitled to succeed to the estate were Mrs Ada Jane Bankes or Anderson and her two sons, all of whom were of full age and subject to no legal incapacity. They declined to give their consent to the disentail, and their expectancies accordingly fell to be valued under the Entail Amendment Act of 1875 (38 and 39 Vict. cap. 61). The respondents consented to the usual remits, suggested the name of the man of skill, and, represented by their local agent, accompanied him on his survey of the estate. They subsequently lodged objections to his report, maintaining that he had undervalued the property, specifying the particulars in which he had been mistaken, and moved for a proof.

The respondents further objected to the report of the actuary, and made certain averments with regard to the petitioner's health as affecting the value of her interest in the estate. These averments were all founded upon present symptoms, and did not involve the previous history of the petitioner.

Judgment:

The Lord Ordinary ( Pearson), on 29th June 1899, pronounced an interlocutor, by which he (1st) remitted of new to Mr Davidson to consider the objections to his report; (2nd) remitted of new to Mr Low to report with regard to the objections to his report; and (3rd) remitted to Dr Byrom Bramwell “to examine the petitioner and to inquire into the facts and circumstances averred … touching the petitioner's state of health, and to report whether and to what extent (if any) her expectation of life is thereby affected.”

The respondents reclaimed, and moved for a proof, both as to the value of the property and as to the health of the petitioner.

The First Division, on 20th July 1899, adhered to the interlocutor reclaimed against.

The respondents moved for leave to appeal to the House of Lords.

Argued for the respondents—Their case would be prejudiced if the remit were exhausted before they could appeal to the House of Lords. The result would be to exclude them from all remedy, for it would be very difficult to persuade the House of Lords to allow a proof if they came there after an inquiry had already been made in terms of the remit.

The doctor who attended the petitioner had died since the judgment of the Lord Ordinary was pronounced, so it would be impossible for the doctor to whom the Lord Ordinary had remitted to obtain any information from him, and any information concerning her health must be proved by a different method than that allowed— Macdonald v. Macdonalds, March 15, 1880, 7R. (H.L.) 41.

Argued for the petitioner—The question was merely one of convenience of procedure, and the respondents would suffer no prejudice if leave were refused. On the other hand, delay might lead to serious consequences for the petitioner. In an entail petition the Court would take this into account, and refuse leave to appeal, even if the respondents had very strong reasons for appealing— Duke of Sutherland v. Marquess of Stafford, Feb. 27, 1892, 19 R. 504. The usual procedure had been followed as to the mode of valuation, and the respondents,

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so far from objecting, had proposed the man of skill who was chosen. As their averments concerned the health of the petitioner and not her habits, it was clear that the Lord Ordinary's method of inquiring into this question was the right one, and that the respondents would not be prejudiced by its being carried out before their appeal. If this appeal were allowed, the result would be that there would be two appeals taken.

The Court granted leave to appeal.

Counsel:

Counsel for the Petitioner— Guthrie, Q.C.— Chree. Agents— A. P. Purves & Aitken, W.S.

Counsel for Respondents— H. Johnston, Q.C.— C. K. Mackenzie. Agent— A. S. Douglas, W.S.
1899