Scottish Court of Session Decisions

Lord Salvesen—This case raises an interesting question as to whether an action concluding only for declarator that the pursuer is the nearest lawful heir-male of line to Captain James Menzies of Comrie, Perthshire, who was born in the year 1663, is competent in the Court of Session. The action is admittedly brought for the purpose of furthering the pursuer's claim to a baronetcy which is said to have lapsed in 1910 on the death of Sir Neil Menzies, the last holder of the title. I think it has been settled that this Court is not entitled in an action such as the present to declare the propinquity of one person to another, and that the proper court for a person who wishes to serve as heir-male of line or on any other footing to a deceased person is the Court of Chancery. The first proposition was, I think, conclusively established by the decision of the Court in Officers of State v. Alexander, (1866) 4 Macph. 741, where it was held incompetent for one to bring a declarator that another is not the heir of a person deceased. No doubt it was a negative declarator which was there held to be incompetent, but if a negative declarator is incompetent, it appears to me that a positive declarator must be equally incompetent. That was a decision of the Second Division, over which at that time Lord Justice-Clerk Inglis presided, and, so far as I am aware, there has never been any challenge of that decision, which in any case is binding upon us. We were referred by Mr Menzies to some observations made by Lord M'Laren in the case of the Earl of Lauderdale v. Wedderburn, 1908 S.C. 1237, at p. 1251, but all that was decided there was that the Court of Session had jurisdiction to determine a claim to the office of Hereditary Standard-Bearer of Scotland, that office being a hereditary office and not a mere title of honour. Now a baronetcy is a mere title of honour. It confers no privileges except those that are social, and the pursuer here does not allege that there is any question of heritable right depending upon the success of his declaratory conclusion.

Mr Menzies has practically conceded that such is the law, but he says that a change has been effected by the Royal Warrant which was published in the London Gazette of 15th February 1910, the object of which is to institute a roll of baronets. Whatever be the effect of the warrant, it seems to me that, so far from assisting the pursuer, it supplies an additional reason for holding that this Court cannot entertain the present action because it provides machinery for carrying out its purpose in which the Court of Session has no place. It provides that the claimant may apply by petition to the Secretary of State, and the Secretary of State has the power of remitting the matter, where a Scottish baronetcy is concerned, to the Lord Advocate, and upon his advice, if he thinks fit, of directing the matter to be referred to the Privy Council for examination. The pursuer does not maintain that a decree of the Court of Session would place him on that roll, but so far as I understand his position he is anxious to get a decree in this Court in order that he may present it to the Secretary of State as prima facie evidence in support of his claim to be put on the roll. Now we are not in the habit of granting decrees simply that they may be evidence in some other court or tribunal. We decide matters of fact finally between parties who are interested in the settlement of these particular matters. But I do not think there is any instance, and none has been cited to us, in which the Court of Session investigated a disputed question of fact, not with the view of their decree being operative, but with the view of aiding the person in whose favour the decree was sought to obtain a claim elsewhere.

I do not think we need say how the position of this pursuer may be improved. It may be that if he obtained a service from the Sheriff of Chancery, after an inquiry made by the Sheriff into his claim, that that might assist him in establishing it in the proper quarter. Certainly, as he has pointed out, it would not be conclusive, because jurisdiction is not vested in the Sheriff of Chancery, but at all events it would be competent for him to serve before the Sheriff of Chancery, whatever the value of such a service might be. All that we have to decide is whether this action is competent, and on that point I have no difficulty in reaching the same conclusion as the Lord Ordinary.

Lord Guthrie—I am of the same opinion. Evidently this is a test case, and the defenders were right in appearing, but I doubt whether they should have gone beyond tabling their position as they had done in regard to the preliminary pleas, and whether it was their duty to raise any question on the merits of the case. The pursuer does not ask us to serve him heir to the individual to whom your Lordship has referred, who was born in 1663 and died in 1748, but the result would be practically the same. I agree with your Lordship that the case is ruled by the case of Alexander, 4 Macph. 741. It further appears to me that what the pursuer asks here we cannot grant, because it would be useless. If the defenders opposed the application on the merits, the Privy Council could say that they were not the proper contradictors. If the defenders did not appear, the pursuer would only get a decree in absence, to which the Privy Council would attach little importance, especially in view of the fact that to obtain service from the Sheriff of Chancery the pursuer would at least have required to produce sufficient evidence to satisfy the Sheriff that he had a prima facie case. I agree with your Lordship on the further ground that it would be against the practice of this Court to grant a decree which is not going to settle anything finally so far as the pursuer is concerned, but merely aid him to maintain a claim elsewhere. We are not bound to advise the pursuer here; and it appears from the correspondence that he is not in the position which has been represented,

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