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SCOTTISH_HoL_JURY_COURT
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(1825) 1 W&S 239
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1825.
No. 30.
v.
Subject_Service — Consolidation — Exhibition — Re-hearing. —
Thomas having in 1748 executed a deed of settlement of his estates, and of those to be acquired by him, containing a simple destination, and procuratory of resignation in favour of his brother David, and the heirs of his body; whom failing, certain other substitutes; whom failing, his, own nearest heirs whatsoever; and the superiority of part of the lands being separated from the property, and having, after making up titles to the superiority, and, in order to consolidate it with the property, given a commission to a third party, who granted to him a charter of confirmation of the base right, and a precept of clare constat for the specific purpose of consolidation, on which he was infeft; and having thereafter purchased certain parcels of lands, on which he was infeft; and for political purposes granted a procuratory of resignation for new infeftment of the greater part of the lands included in the deed 1748, to himself, his heirs and assignees, in fee, on which he expede a charter in 1774, but did not take infeftment; and having died without issue, and been succeeded by David, who obtained a general service to him “tanquam legitimus et propinquior hæres masculus et lineæ” and been infeft on the precept in the charter of 1774; and David having thereafter executed an entail in favour of a series of heirs, exclusive of the heirs whatsoever of Thomas, and died without issue; and the intermediate substitutes under the deed 1748 having failed, and the heir whatsoever of Thomas having brought an action of exhibition against the heir succeeding in virtue of the entail, and a reduction of the titles made up by David, and of the entail;—Held, (affirming the judgment of the Court of Session), 1. That the service of David to Thomas was effectual to convey to David the personal right of all the subjects specified in the settlement 1748, and contained in the charter of 1774, and entitled him to execute the entail, but not as to lands not included in the charter of 1774: 2. That the terms ‘heirs and assignees’ under the charter of 1774 did not necessarily imply the same heirs as those called by the deed of 1748: 3. That (without deciding the point of consolidation) as Thomas was vested in the personal right both of the superiority and property, that right was transmitted to David by his service: But, 4. A remit made to consider, whether the right to the lands which had been acquired by Thomas subsequent to the deed 1748, and not contained in the charter 1774, could be transmitted to David by the above service: 5. That the entail was sufficient to exclude the heir of Thomas from insisting in an exhibition of the previous titles: And, 6. That a party who had an opportunity of being heard at the Bar of the House
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of Lords on points incidentally noticed in his printed case, and on which judgment was given, although he alleged he was not heard, was not entitled to a re-hearing.
Gilbert, Earl of Cassillis, was proprietor of the estates of Cassillis and Culzean, the former of which was entailed on the same heirs as the peerage, but the latter was held by him in fee-simple. In 1569 he conveyed Culzean to Sir Thomas Kennedy, who, after some intermediate generations, was succeeded by his descendant, Sir John Kennedy. Sir John had three sons—John, Thomas, David; and three daughters—Elizabeth, Anne, and Clementina. John, the eldest son, succeeded his father in Culzean. His sister Elizabeth married Sir John Cathcart of Carleton, Baronet, and was the mother of the appellant, Sir Andrew Cathcart. After making up titles to Culzean, John, in January 1743, executed a disposition and deed of settlement, containing a procuratory of resignation which he executed in April thereafter, “in favour of myself and the heirs-male of my body in fee; whom failing, the heirs-female of my body, the eldest succeeding without division; whom failing, Mr Thomas Kennedy, my immediate younger brother-german, and the heirs-male of his body; whom failing, Mr David Kennedy, my youngest brother-german, and the heirs-male of his body; whom failing, the heirs-male procreated of the marriage between Sir John Cathcart of Carleton, Baronet, and the deceased Dame Elizabeth Kennedy, his spouse, my eldest sister-german; whom failing, Mrs Anne Kennedy, spouse to John Blair of Dunskey, my second sister-german, and the heirs-male of her body; whom failing, Mrs Clementina Kennedy, my youngest sister-german, and the heirs-male of her body; whom all failing, my nearest lawful heirs and assignees whatsomever.” This deed was registered in the books of Council and Session July 31. 1747; but the destination was not fortified by any prohibitory clause. On the death of his brother, Thomas (afterwards called Sir Thomas, and thereafter Earl Thomas) obtained a general service as heir of line and provision to him. In January 1748, and before Thomas had vested in himself any feudal title, he executed a disposition and deed of settlement, containing a procuratory for resigning the lands and all others which he should acquire, “to and in favour of myself, and the heirs-male of my body; whom failing, to David Kennedy, my only brother-german, and the heirs-male of his body; whom failing, to Mr David Kennedy, advocate, my uncle, and the heirs-male of his body; whom failing, to
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Sir Andrew then brought an action of exhibition ad deliberandum against Earl Archibald, and certain trustees named by Earl David, and of damages against them and Mr Kennedy of Dunure, in which, after founding on his right as heir-portioner, of line, and of provision, to John, Thomas, and David, he set forth, “that the pursuer, in consequence of the right which he unquestionably had, by virtue of his apparency, to a full and unlimited inspection of the repositories of his ancestors, and especially in respect of the facts and circumstances before specified, which took place on opening the repositories at Culzean, and of the letters and proposals which afterwards passed at Edinburgh relative to that business, did repeatedly desire and require the several defenders before-named, to exhibit to him the whole writs, title-deeds, and securities made, granted, or conceived, to or by his said predecessors, with all other writs and documents regarding the estates, heritable and
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The summons therefore concluded, that the defenders should be ordained to produce “the whole title-deeds, &c., and all other writs and obligations, of whatever kind or denomination, Which they, or any of them, have in their possession and custody, made, granted, and conceived by or in favour of the pursuer's predecessors above-named, or any of them, or their predecessors, with all inventories of the title-deeds of their lands and other writings, and all adjudications or other legal diligence deduced against their estates, and all other writings relative to the estates, heritable and moveable, which pertained to them respectively;”— “to the effect that the pursuer may have access thereto, and full inspection thereof, in order to his deliberating upon the nature and extent of the succession which has now opened to him in consequence of the death of his ancestors before-named; and may be enabled to judge, whether it is proper and expedient for him to enter and represent his said predecessors as heir of line or of provision to them respectively before-mentioned.”
There was also an alternative conclusion, failing such exhibition, that the defenders should be found liable in the “damages sustained by him through the improper and unwarrantable conduct of the defenders, or any of them, in withholding or putting out of the way writings in which the pursuer has so deep an interest.” In defence it was pleaded, that as Sir Andrew's right was completely excluded by the entail made by Earl David, the action was incompetent; and in regard to the claim of damages, that Mr Kennedy had correctly performed the trust committed to him, which was only to endure till the nature of Earl David's settlements should be ascertained.
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Lord Craig, on the 14th December 1793, assoilzied the respondents, and to that judgment the Court adhered on the 4th of February 1795. *
Thereafter, Sir Andrew granted a trust-bond to his agent, Mr Blane, writer to the signet, who, with the view of adjudging the estate of Culzean, and in order to try the question of right, brought a reduction of the titles made up by Earl David, and the entails executed by him, as inept. †
In support of the action, Sir Andrew, by his trustee, contended,—
1. That as Earl David never made up a title as heir of provision, in terms of the disposition by Thomas in January 1748, he remained a mere apparent heir of the lands in question; and by a well-known rule of law, had no power gratuitously to alter the destination, to the prejudice of the heirs thereof: That this objection applied to all the lands in dispute, but particularly to certain parcels, (which, in the course of the discussion, were styled the ‘pendicles,’) viz. the lands of Enoch and Little Enoch, the lands of Portmark and Polmeadow, the tenements in Maybole, and teinds, conveyed by Crawford of Ardmillan, which had been acquired by Earl Thomas by purchase subsequent to the deed of 1748, and were not included in that of 1774.
2. That although Earl Thomas had, in order to extend his political influence, passed the charter of 1774, containing most of the lands in question, in favour of himself, his heirs, and assignees, that charter was not intended to alter the previous settlement of the estate, which had been made by the deed 1748, and could not have that effect; that the terms, heirs and assignees, in the charter 1774, being flexible, must be understood as of the heirs of the destination in the deed 1748; and that, at all events, the service of Earl David, as heir-male and of line to Earl Thomas, could not connect him with the charter 1774, as it was necessary to be served heir of provision under the deed which regulated the succession.
3. That even supposing Earl David had, by his service as nearest and lawful heir-male and of line, effectually vested himself in the right of the charter 1774, still that charter, with regard
_________________ Footnote _________________ * See Morr. 3993. †Although this action did not form the subject of the present appeal, yet, as it gave rise to several important questions, of which there is no connected report; and as the reporters have been favoured with notes of the opinions of the Judges, they have been induced to present a full report of the case.
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To this it was answered,—
1. That though Earl David's general service was not per expressum a service as heir of provision under the disposition 1748, yet, as it sufficiently demonstrated Earl David to be necessarily, and to the exclusion of all others, the person called to the succession by that deed, it was sufficient by the law of Scotland, as fixed by a series rerum judicatarum, to carry the whole personal rights which stood under the disposition 1748, just as effectually as if the general service had found Earl David to be the nearest and lawful heir-male and of line, and heir of provision, under the disposition 1748. And further, that the personal right to the lands of Enoch, Portmark, Polmeadow, tenements in Maybole, and teinds, were carried by Earl David's general service, as connecting him with the deed 1748 conveying all subjects to be acquired by Earl Thomas.
2. That whatever object of conveniency, whether connected with political operations or otherwise, might have induced Earl Thomas to expede the charter 1774 in favour of himself, and his heirs and assignees, contrary to the terms of the disposition 1748, the latter charter must be held to have altered the former destination, and to have devised the estate to the heir of line; that there was no power in the Court, upon the supposed flexibility of the word heirs and upon vague imaginations as to the probable intention of Earl Thomas, to give any effect to the charter 1774, other than that whioh the technical terms employed legally imported: That besides, were the Court entitled to take such liberties with the deeds of individuals merely ex presumpta voluntate, there was no reason for believing that Earl Thomas, in expeding the charter 1774, meant to use the words ‘heirs and assignees’ in any other sense than that
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3. That with regard to the want of consolidation, it was a matter of no consequence, since both the property and superiority being vested in Earl David, his settlements conveyed them both, and every other right that was in him, with equal effect, whether separate or consolidated; but the proper and correct mode of consolidating had been adopted.
Lord Justice-Clerk, (Braxfield), on 13th May 1797, pronounced this interlocutor:—
“Finds, that Earl David's service as heir-male and of line to his brother Earl Thomas, necessarily established him to be heir under the settlement 1748: but, 2do, et separatim, finds, that the settlement 1748 was alterable by Earl Thomas at pleasure: And in respect that, by the disposition 1774, executed by Earl Thomas, and charter following thereupon, a considerable part of the lands in dispute stood devised to Earl Thomas, his heirs and assignees, finds, that Earl David's said service did effectually carry the right of superiority of these lands, as established by the foresaid charter, and that the precept of clare granted by Earl David in his own favour, with the infeftment thereupon, did effectually carry the property: Finds, that it is of no importance in this question whether the property was consolidated with the superiority or not in Earl David's person; for although, in a
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question of succession ab intestato, these lands, without consolidation, would be considered as two separate estates, descendible to different heirs if so devised, yet as both property and superiority were effectually vested in Earl David's person, so any deed of conveyance of these lands executed by him would carry every right and title he had in the lands, whether of property or superiority; and therefore, upon the whole, repels the reasons of reduction as to the whole of the lands contained in the disposition 1774; repels also the reasons of reduction as to the whole of the other lands and tenements in dispute, except as to the tenements of Maybole, the lands of Portmark and Polmeadow, the teinds contained in the conveyance by Mr Crawford of Ardmillan, the lands of Enoch and Daljarbrie, as to which desires to hear parties farther; and with the foresaid exceptions, assoilzies the defenders, and decerns.”
Sir Andrew's trustee having lodged a representation, and the cause having been afterwards remitted to Lord Armadale, during the Lord Justice-Clerk's indisposition, his Lordship, upon advising it, with answers, pronounced this interlocutor on the 22d January 1799:—
“Refuses the desire of the representation, and adheres to the interlocutor pronounced by the Lord Justice-Clerk, in so far as respects the lands contained in the disposition 1774 executed by Earl Thomas, and infeftment following thereon; but with respect to the lands of Portmark and Polmeadow, finds, that Thomas Earl of Cassillis was infeft in these lands, upon the dispositions granted by the persons from whom he acquired right to them, and that he died infeft therein: Finds, that the lands of Portmark and Polmeadow were not comprehended in Earl Thomas's dispositions 1774, and charter thereon following, nor in any personal deed or conveyance executed by him, either in his own favour or in favour of Earl David, posterior to the infeftment taken by him in these lands upon the original disposition thereto: Finds, that Earl David's general service was insufficient to vest in him any right or title to these lands of Portmark or Polmeadow, in which Earl Thomas died infeft; and that no title to these lands was made up by Earl David, that enabled him to carry these lands to the defender, and to disappoint the right of Sir Andrew Cathcart; and therefore, quoad these lands of Portmark and Polmeadow, sustains the reasons of reduction, and reduces, decerns, and declares accordingly.”
Thereafter his Lordship, on advising mutual representations, pronounced the following interlocutor:—
“Alters that part of the interlocutor, of date 22d January
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1799, which finds that Earl David had no sufficient title in him to these lands of Portmark and Polmeadow: Finds, that Earl Thomas's disposition in 1748, in favour of his brother David, conveyed not only the lands therein specially enumerated, but also all the other lands which the said Earl Thomas should thereafter acquire; and that Earl David's general service in 1776 was sufficient to establish his right as heir under the disposition in 1748; and therefore adheres in toto to the interlocutors pronounced by the late Lord Justice-Clerk, of date 13th May and 29th June 1797; refuses the desire of the representation for the pursuer; assoilzies the defender from the whole conclusions of the libel, and decerns.”
Sir Andrew's trustee having reclaimed, the Court, on the 15th January 1800, “found, that David Earl of Cassillis, by his general service tanquam legitimus et propinquior hæres masculus et lineæ to his brother Earl Thomas, carried right to the unexecuted precept in the charter 1774, and did thereby vest in him a sufficient personal right to the lands therein contained; that as Earl David was heir to his brother, as well by the special destination contained in the deed of settlement executed by Earl Thomas in 1748, and the charters following thereupon, as by all the other titles and investitures in the person of Earl Thomas, it is unnecessary to determine the question, whether the special destination was altered or not by the charter 1774, the general service being, in all events, sufficient in point of form to connect him with the lands contained in that charter, or in any similar titles; and so far adhere to the interlocutors reclaimed against; but ordain the parties to give in memorials upon the other points of the cause, and particularly upon the question of consolidation, respecting the lands of M'Gowanston and others, and upon the question, whether the general service was sufficient to connect Earl David, as heir of provision under the settlement 1748, with the different parcels of land which were acquired by Earl Thomas.” *
_________________ Footnote _________________
* Morr. 14,447. The following Notes of the opinions when the above judgment was pronounced were taken by James Ferguson, Esq. Advocate:—
President.—The first point is the validity and effect of Earl David's general service to his brother Earl Thomas.
Lord Justice-Clerk thinks the effect of the charter 1774 of Earl Thomas as importing an alteration of the destination of the investiture 1748, and therefore, as a question which may prejudicate the other, ought to be first considered.
Lord Justice-Clerk .—1st Point.— Clear, in the first place, That Earl Thomas held the whole estate in fee-simple: 2dly, That he never limited the powers of his heirs.
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Sir Andrew's trustee having reclaimed, and memorials having been lodged, the Court, on the 15th January 1801, adhered; and
_________________ Footnote _________________ Indeed, he expressly conveyed to Earl David a fee-simple of the whole estate. Will riot now go into the nice distinctions as to the history and form of the titles of the different parcels. A general service will vest a right to expede titles to all personal rights which have devolved upon the person served in the character established by the service. If service does not describe exactly the character in which all the estates may be taken, but establishes these by implication, it is a question of intention how and to what extent a person served may apply his service. The jury find the facts proven to them, which may establish an additional character as heir beyond that specified in the brief or claim. The jury here have found that Earl Thomas died without issue; that Earl David was his only lawful brother living. Clear, then, that Earl David was heir-male of his brother; and this is also established by the service. Also that he was heir of line. Not in the service described as heir of provision, but called by charter 1748 in the very case of devolution found to exist by the service, viz. as heir-male of his brother Thomas on his death without issue. Can it be argued that David's right was to be set aside, because, though his service established every fact which proved every character of heir and every right of succession to unite in his person, yet it did not specify one of those characters as heir arising from the facts proven and sworn to?
2d Point.— Besides, charter 1774 clearly, in his Lordship's opinion, an universal settlement Political purposes might be the reason for chusing the time to execute this settlement, but will this qualify or invalidate the settlement? A procuratory of resignation then granted by Earl Thomas of his whole estate. This the best and most usual mode of making a new settlement or entail. Charter thereon expede to “heirs and assignees whatsoever.” Can this be carried back by implication, and restricted to the terms of a former investiture? and can these terms be limited because not the same with the terms in investiture 1748, which might be altered at pleasure, and had been partially at least altered before? Had infeftment followed on this charter 1774, could an heir have served in special as heir of the prior investiture 1748 afterwards? As no infeftment followed on the charter in 1774 before Earl Thomas's death, a general service of Earl David alone could take up the personal right of this charter. Where was the obligation on Earl David to go back from the last incomplete title of 1774, which was a catholic title, and only wanted infeftment, to the prior more limited titles? Earl David completed this catholic title liabili modo by service, carrying the procuratory, &c. and then by infeftment Nothing to bar him from doing so. No prohibitions, restrictions, irritancies or limitations in the former titles of Earl Thomas, which could found a challenge against the title completed on resignation 1774 followed by the charter. It is said, that the term ‘heirs whatsoever’ in charter 1774 may be interpreted or restricted to mean the heirs of the investiture 1748. Accessory rights may be carried by presumpta voluntas; but the term ‘heirs whatsoever’ is a technical phrase, perfectly understood, and, when the only destination used in the investiture of an estate, must bear its own meaning, and receive the weight due to that meaning.
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_________________ Footnote _________________
prior general settlement. Case of Rose, but for specialties, would have been so decided. For the truth of this refers to the argument in that case, and to the President's recollection. Thinks it extremely questionable whether charter 1774 can be regarded as importing an alteration of the destination in the investiture 1748. Doubts on second point also. David Earl of Cassillis's service, if it is to be regarded as equivalent to a service under charter 1748, then it refers to that investiture in toto; and suppose the competition here between a daughter of Earl Thomas, or a son of David Kennedy, the uncle of Thomas and David Earls of Cassillis, or of John of Kilhenzie, and a stranger disponee of Earl David, could they or any of them set aside such a service as Earl David's? Thinks the question might merit serious discussion. Names will not alter the principles of law or their application. Conceives it improper for him to go into argument.
President,—If any thing turns on alteration or non-alteration of settlement 1748, I am of opinion that it never was altered, and at Earl Thomas's death remained a standing investiture of the estate. Ready to give reasons for thinking so, but thinks it not essential to the cause at present. Will consider, 1st, The effect of general service expede by Earl David at the death of Thomas. This service comprehended every general character that Earl David could possibly have. Whether investiture 1748 altered or not altered by devisement in charter 1774, the words heirs and assignees in that devisement, technically mean the very same thing as legitimus et propinquior hæres, the words in the service. These last are strengthened by the addition of the words, masculus et lineæ. Perfectly clear, that Earl David having in him every character as heir in every sense, of provision, and heir-male, and of line; the service must be therefore good as applying to the character in the charter 1774 of the heirs called by that charter, whether it altered investiture 1748 or not. A different question, whether when so served and invested, David must give effect to the investiture 1748. He would have been obliged to do so, if that a taillie. If there had been competing heirs when he was served, or heirs having interest to require him to make up his titles under the investiture 1748. There were none. No person could shew an interest to require that he should make up his titles under investiture and destination 1748 by any action. He had in himself every title and character of heir of every kind when he was served. The precise same rule in judging of Earl David's service, applies in so far as regarded his own right and title to the parts of the estate not in the charter 1774; for example, as to the barony of Greenan; feu-rights granted of that estate before the 1774; by the feu-rights that barony devised to the heirs of the destination 1748. The reconveyances of these feu-rights expressly refer in some cases to that investiture. Some of these reconveyances also, are hæredibus et successoribus quibuscunque. A charter obtained, and continuing unaltered, may change the former settlement and destination of an estate held in fee-simple, though not followed by infeftment, but revokable till the death of the person who obtains it. Case of Rose was decided on special circumstances, which fully proved the intention. It was there laid down, that a political charter did not alter the investiture; and although against my client, I approved, as I do approve, of that doctrine. Charter 1774, according to the evidence of intention which exists, was not meant to alter the destination 1748. That, however, does not affect the consequences of the general service of Earl David, as vesting the whole estate and prior rights and titles thereto in him. Every right was thereby carried to him which existed; still, however, this does not exhaust the whole cause. Suppose that the rights in his person still remained separated and distinct. His settlement might not convey all these. As to some parcels, not clear: I would wish to hear and to read something more. Question of
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_________________ Footnote _________________
consolidation, respecting M'Gowanston and two other parcels. There a base infeftment of preceding owner was in the way when Earl Thomas expede his charter to the superiority. No resignation ad remanentiam was used. The consolidation was attempted by confirmation, and by declaring in the charter of confirmation his purpose of consolidating. Decision in the case of Buchanan and Bald settled the point, that there could be no consolidation without a resignation ad remanentiam. A go-by is given in the answers to this point. William Buchanan of Drummakiln did precisely in that case what has been here done, and the consolidation not being affected, his disposition was ineffectual to his daughter, and the succession lost by that mistake, by the solemn decision in that case as to a very valuable property, the dominium utile of the estate. There never was a consolidation in this case. The dominium utile, therefore, in hæreditate jacente of Earl Thomas. But this point is not yet fully explained. Should go to the Ordinary. The interlocutor shews that the point has not been argued so as to point out the application of the legal principles to the titles of this property to the Judge. At present, doubts if, in point of fact, even Earl Davids service carried both property and superiority of these parcels.
Sol.- Gen. (Blair, for Lord Cassillis).—Both property and superiority, whether consolidated or not, of these parcels, contained in investiture 1748; and therefore carried by service of Earl David. If that service had the effect of taking all that was in investiture 1748.
President.—At present I am of opinion, that the service does not connect with the purchases, nor with the special destination 1748, independently of the intermediate charter and disposition. Dominium utile of M'Gowanston, if not consolidated, and the purchases, stand on the footing of charter 1748. If these were only to be taken up on the footing of the conveyances from the purchasers, then a special service was necessary. There was a general right in charter 1748, which might have been the subject of an adjudication, and therefore of a general service. But the general service expede by Earl David, in its general characters does not necessarily include a special character. A general service never found to connect with a particular investiture without reference to it; so found in the case in papers of Edgar. At present inclines to think, therefore, that the general service does not carry purchases, nor dominium utile of M'Gowanston. January 1706, Livingston; 14th December 1796, Calder against Ellison. There might have been two Davids.
Lord Bannatyne of opinion, that charter 1774 not an alteration of investiture 1748; and therefore that the destination of that investiture still regulates the succession.Vote put by the President,—Does the general service of Earl David carry right to all the subjects devised to heirs and assignees?—That it does, Lords Justice Clerk, Polkemmet, Armadale, Balmuto, Craig, Stonefield, Ankerville, and Meadowbank.—Not, Hermand and Bannatyne.
Found unnecessary to determine whether the settlement 1748 is altered by charter 1774.
N. B.—Lord Glenlee being one of Earl David's trustees, did not vote; and Lords Dunsinnan, Methven, and Cullen, were not present.
* The following notes of the opinions were taken by Lord Advocate Dundas, Counsel for the Earl of Cassillis:—
Justice-Clerk .—Deed 1748 gives estate nominatim to Earl David,—an unlimited settlement, and in fee-simple, both adquisita et adquirenda. Deed 1774, although
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_________________ Footnote _________________
for making votes, a good investiture. Resignation the most formal and complete mode by which a man infeft in lands can reinvest them for the purpose of settling succession. Must judge only ex facie of the procuratory and subsequent charter following thereon. His service as heir-general to Thomas took up every personal right; and last substitution in deed 1748 being to heir and assignee, David, though not named nominatim before, took up the estates habili modo as heir and assignee whatever. His subsequent settlements, therefore, good. Had deed 1748 preferred different persons to Earl David, might have been some doubt as to the service. Only question is, was there a proper feudal title made up or not in the person of David? Thinks there was, and that subsequent settlements good.
Hermand .—Import of service the main question. If material to consider service in case admitted by Justice-Clerk of different persons being called from Earl David, cannot think it immaterial here. Charter 1774 made no alteration.
Armadale .—One point, not stated before him as Ordinary, implied prohibition, but nothing in that case. If Earl David's title to Earl Thomas connected him properly with his brother and the estates, then the settlements are good. Earl David thought he had done so, and meant to do so. Settlement 1748 was one of the settlements with which David was to connect as the governing settlement; and, second, the charter 1774. If at Earl Thomas's death any question could have occurred from the state of the family between heir-male and heir-line of Thomas, then agrees with us, that necessary to have attended to the distinction. Clear that no alteration intended by Earl David of the investitures; but then he was heir to his brother, and to the estates in every character, and in his power to have taken up succession either as heir of 1748 or of 1774, or of both, just as he pleased and chose. Instances daily occur of different estates belonging to a defunct, which stand to heirs-male, of entail, or line. Now, if heir is heir to all these estates in each character, he may do it in any form he chooses, most unquestionably by general service. But no doubt true that some lands contained in 1748, which not contained in deed 1774; and question as to these, if title 1776 connects with these. Understands, on force of decisions quoted in case, that if character appears from general service to be truly in the heir, although not correctly expressed, that is sufficient; and interlocutor of Braxfield, 13th May 1797, is therefore good. If it is necessarily implied from service that heir is not only of line, but also male and of entail, that is perfectly sufficient, and he will take conquest, entail, and every thing which truly belongs to him, though that not expressed. Unnecessary, too, to take notice of the particular deed under which any such heir is rendered male, of provision, conquest, entail, &c. Not sure if it would not be proper that a general invariable rule had been established to the contrary, and obliging heirs of provision to notice the deed and state the character; but finds no such' rule which will entitle him to say, that if service as heir of line implies service as heir-male, that it shall not also imply heir of provision. A general service has no immediate relation to lands. It only establishes the character, through and by means of which the heir served generally may afterwards connect himself with lands. No danger of extending the doctrine of implication to heirs of provision, because he could only take up after a general service the particular lands specified in the deed by which he is constituted heir of provision, and no more.Decisions in Menzies, Dalhousie, Haldane, support the general doctrine above laid down. The other decisions not contradictory, because in these services it did not appear ex facie of the service that the other character implied. Refers to and quotes the service of Earl David as actually expressing him to be only brother-german of
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Thomas, who died without issue or heir-male, and that he is of course both heir-male and of line. What more necessary? Not surely required to produce the deed by which heir is rendered either heir-male or provision, as found in case of Linplum.
Hermand .—Difficulty here, that if Armadale's doctrine good, then, if no title at all made up, if it truly appear that he is de facto heir, this sufficient Denies that proposition—quod potuit non fecit Cases of Reid and of Fairservice, Court thought, though both characters in the heir serving, yet that this held insufficient One of these cases was a man heir both of line and of marriage, yet the service set aside. Thinks that Thomas did not mean by charter 1774 to alter investitures of estates; but clear from the circumstances under which the charter was obtained, that not Earl Thomas's intention to do as in case of Kilravock. Then if deed 1748 not altered, a very important and difficult question indeed—recommends attention to Mr Ross's Memorial, which is a lecture on law of services. Material and radical distinction between services as heirs of law, line, male, and conquest, which are definite, and which require no particular deed to be produced to instruct them, and may therefore be necessarily implied from the words insert in claim to jury and verdict, as was the case in Orr's case and in Haldane's case; but widely different where case is of service as heir of provision or entail, and impossible to imply that character, unless deed stated or produced on which that indefinite character is founded. Production of deed perhaps not necessary, as found in the case of Linplum. But there be claimed as heir of provision. Now, had deed 1748, or any other deed, been produced, making David heir of provision, would have agreed with Earl Cassillis; or even if it had necessarily appeared that he claimed as heir of settlement 1748, or any other settlement, would have been inclined to agree; but neither of these the case. Illustrates by hypothetical cases in petition, where David might not have been heir of provision or line. This service would not have interrupted prescription of the settlement 1748 as to decisions, unless implied or necessary; cannot admit it, and so found in case of Reid against Woods. Agree with Haldane's case as if necessary implication, and same nature is case of Orr. Here no such necessary implication,—indeed impossible.
Meadowbank .—Notwithstanding able memorial, remains of opinion with interlocutor: concurs entirely with Armadale. Denies Hermand's distinction between services as heirs-male, or line, and heirs of provision. Service 1776 clearly sufficient to take up the deed 1748; and therefore adheres.Notes were also taken by Thomas W. Baird, Esq. Counsel for Sir Andrew; and as those of Lord Meadowbank's opinion are fuller than those by the Lord Advocate, they are here given:—
[Was formerly of opinion with the interlocutor of Lord Ordinary, and is so still; coincides in every thing with Armadale; only doubts whether, as stated by that Judge, it would be better in practice to require production of deeds of provision, aud to mention them in the service. Has no inclination to draw the matter tighter than our ancestors did service of the country; that he who has the substantial right should have the power of disposal, and his settlements not to be disappointed “by a swirl of the law.” A service as heir-male the same as heir-male of provision. The latter necessarily inherent in the former. A decree of declarator, finding that Earl Thomas had died without heirs of body, would have transferred right to Earl David, called nominatim by deed 1748. No difficulty in finding the service sufficient to take up that deed.]
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Bannatyne.—Alters his former opinion, and thinks the title proper.
Craig .—Two separate points. 1st, Is title good on charter 1774? Thinks it a good investiture hæredibus, &c. and enters not as to question for what purpose it was done, and therefore service good. This supports interlocutor as to all subjects contained in deed 1774. As to 2d question, a very general and important one; and in spite of all he has heard, must concur with Lord Hermand, and for altering quoad all lands not contained in the charter 1774.President.—Has had no difficulty in the cause, except the last spoken to by Lord Craig, and even as to that would have had none but for the interlocutor of Lord Justice-Clerk. But thinks he will prove that this a mistake, and that not his opinion. As to implied prohibition, a joke. As to consolidation, that decided in case of Drumakiln; but that at an end by positive prescription. As to lands contained in 1774, clear that Earl David's service did most evidently connect him with that charter. Thinks deed 1748 never altered till by deed of Earl David; but different question whether a title good or no, and question whether succession altered or not; for if David had left a daughter, clear that distant heirs-male would have taken under settlement 1748 in preference to the daughter, because Earl David had not done any tiling in his lifetime to alter the succession.
Memorial for pursuer argues most ably the important question here at issue. Amounts to a mathematical proposition. Clear that service as heir-general never can include a service as heir of provision. Sorry for the law of Scotland, and irremediable consequences inextricable to settlements of landed property, if the contrary held to be law. Explains Braxfield's first interlocutor, where preliminary words have that impression, but concluding words reserve for hearing the question as to lands, to which alone this great question can relate. Besides, in the very late case then depending, Braxfield decided the very reverse in the identical same circumstances. Case of Forbes, in p. 58. of Earl Cassillis's memorial. In that case Braxfield set out with approving of Haldane's case, on the very grounds stated by Lord Hermand,—necessary implication; but thought differently in Forbes's case, because no such necessary connexion or unavoidable implication between heir of line and heir of provision. Most dangerous, indeed, and destructive of feudal law of Scotland, if to go into doctrine of supplying characters by remote circumstances not appearing ex facie of service, and necessarily arising from it. Braxfield at that moment had case of Cassillis depending before him.
Asks if it would have been possible for David under this service to have served heir in special to the lands contained in 1748? Clear that it required a service as heir of provision to carry the lands. That not done, and therefore these still in hæreditate jacente of Thomas. (This opinion goes clearly to give Sir Andrew, Portmark, Polmeadow, Enoch, and Maybole, which stood clothed with infeftment in Earl Thomas's person to heirs of provision). If Earl David had not made his settlement, inclines to think with Hermand, that heirs in deed 1748 would have succeeded. Title and rule of succession very different things in law.
Justice-Clerk .—Thinks he sufficiently connected himself with the personal right in deed 1748.Adhere.— Armadale, Justice-Clerk, Cullen, Bannatyne, Ankerville, Stonefield, Polkemmet.
Alter.—President, Hermand, Craig, Dunsinnah. Glenlee did not vote.
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* The following Notes of the Opinions were taken by Matthew Ross, Esq. Counsel for Sir Andrew:—
Hermand .—An important question of law here occurs, though perhaps, in the circumstances of the case, it will not affect any extensive property. The question is, whether the general service of 17th April 1776 is a good service as heir of provision? The consequences of the interlocutor as it stands would be alarming. A succession may be fixed upon a man which he never thought of, and of course all its passive consequences. In place of Earl David's taking up the character of heir of provision under the deed 1748, by the general service of 17th April 1776, there is every appearance that the deed 1748 was industriously rejected by him, whatever his motive might be for so doing. But the question is, has he connected himself with the deed 1748, let reason of his conduct be what it may? It appears to me he had not. Put this case:—Suppose there had been different dispositions; one in 1748, and another of a different date and tenor, with clauses inconsistent, and a different destination; will it be said, that both could be carried by the general service, and that by the service which makes no mention of any deed, or of any service in the character of heir of provision,, the person serving would become heir under both the contradictory deeds? and if not, under which would he be held to be heir? There is no safety but in adhering to principle. Conjectures are not to be regarded. It is said, that in expeding a general service as heir of line, the heir cannot foresee the extent of the obligations he may incur by such service. But, for that very reason, I will not put any construction upon a service that may give it more extensive effects than it necessarily must bear. Earl David well knew the deed 1748, but never did any act importing an intention to take it up. It was said every man may judge how to make up his titles. But the inference from this is against the defender. It follows the more clearly, that therefore the Court cannot, and ought not to judge for him; but he ought to declare explicitly his own intention. Animus adeundi necessary. If a claim necessary, can a man otherwise than as he does claim? It was said it was enough that party has a right to be served. This contrary to all my ideas of the law of service. The decisions are consistent and agreeable to principle. In case of Haldane, the true character implied necessarily. Case of Livingston against Menzies the only exception. This clearly erroneous and never followed.
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The Earl having then reclaimed, the Court, on the 16th November 1802, pronounced this judgment:—
“Find, that Earl
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Meadowbank .—Have heard nothing to make me alter my opinion. As the Lord President viewed the case differently, I should wish his Lordship to deliver his opinion.President.—I have a fixed opinion; but I do not wish to break in on the usual order in delivering it.
Meadowbank .—I agree with the pursuer that the true character must be expressed or implied in the service. But I think the true character, that is, a service in character of heir of provision, was implied in the service in question. A service as hæres masculus is a service, not as heir of law, but as heir of provision; and here the character of heir of provision is implied in the service as heir-male. I consider it the same as if heir of provision had been expressed. The case of two settlements was put by Lord Hermand. I answer, that supposing a man is served heir of provision generally, this is undoubtedly good; yet the same difficulty would have occurred to settle to which deed the service applied. I think your Lordships must determine, whether the deed 1748 carries Earl Thomas's purchases in which he was infeft. I conceive it does, because the deed 1748 was a paramount settlement, governing the whole succession to all his lands; therefore the defences should be sustained generally.
Armadale .—After considering the case with great attention, I remain of my former opinion. What is stated in the minute at first moved me; but now I think it can have no influence. Evidence sufficient appeared upon the service that David Kennedy was entitled to be served heir of provision.President.—I agree there was sufficient evidence that David Kennedy was entitled to be seryed heir of provision; but is this enough? If it were, the eldest son serving heir in any character must be served in all characters. This never was before supposed. To illustrate the question, consider the analogous case of a general and special charge. There are three kinds of charges:—General charge, this only fixes representation; the special charge, as to subjects in which ancestor died infeft; and the general special charge, as to the subjects in which the ancestor was not infeft. General charge does not supply want of special charge, or general special charge. There are in like manner two kinds of general service:—Service in a general character, known in law as heir of line, or heir-male; or in a special character, as heir of provision. The character of heir-male is a general character known in law, and a person may be served in that character though there are no subjects to descend to the heir. But as to heirs of provision, whose specification depends entirely upon particular deeds, no man can be served heir of provision unless there be a deed by which he is called, and a subject which he is to succeed to in that character. The deed 1748 did not call David as heir-male, but as a substitute heir of provision specially called. He might have been served as such, but he never was served as such. The mere reading of the service in question is to me complete evidence that he never was served heir of provision. He was served heir of line, and heir-male,—nothing more. Any thing descendible to those he could take, but nothing more; and in these characters we may take large estates, but can take nothing descendible to heirs of deed 1748. Suppose only object of this service had been to reduce the deed of settlement 1748. It might have been so. Such a thing frequent, nay necessary to enable him to challenge. Upon this service as a title he might have brought a challenge of the very deed under which your Lordships suppose him to have served heir; so that the very act of making up a title to challenge would be a bar to the challenge, which is absurd. It was argued for the defender that Earl David not only had a title to be served heir of provision, but that he also possessed the lands; and this was alleged to be evidence that he intended to be served heir of provision. This, in the first place, is going out of the record; but next, it has
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no foundation, for Earl David was heir-apparent in every character. He was heir of the feudal investitures, or personal rights, by which the different properties belonged to Earl Thomas, and he was also heir-apparent of the deed 1748. So in every view he had a title to possess. Earl David never was served heir of the deed 1748, either expressly or by implication. To find that there was here a service by implication, must confound all our law of services, upon which the transmission of land estates from the dead to the living depends. The consequence must be dangerous. It is said, that one service was implied in another in the case of Haldane. I shall suppose that a right decision. But the service there was not a service as heir of line, but a service as legitimus propinquior hæres. This involved and imported that the party was both heir of line and heir-male. An eldest son could not be the one without being the other also. The decision only imports quod majus includit minus. Both are general legal characters; and in the case of an eldest son, the one necessarily includes the other. It is a dangerous thing, however, to relax in the smallest degree any of the legal forms as to land rights; and for that reason, though the decision may be right, I would have hesitated about pronouncing it, on account of consequences, and because it might be thought to loosen as it were one stone in the fabric of our land rights.
Craig .—Have hesitated, but, upon the whole, remain of former opinion,—for pursuer.Bannatyne.—The form of transmitting land rights highly important Form should be fixed and certain; and am of opinion that a service as heir of provision, cannot be implied in service as heir-male and of line, which might subject him to consequences he never thought of.
Lord Justice-Clerk .—The service in question sufficiently points out Earl David to be heir of provision. It shews that Earl Thomas died without heirs of his body, and that Earl David had thus the substance. And I will not presume that it was intended to omit the form, but rather that he meant to be served, and the jury to serve him as heir of provision. It has been decided, that a service as heir of provision, without reference to any deed, will vest rights descending to heirs of provision under every deed. This attended with every inconvenience objected to the holding the service in question a service as heir of provision. Agree with Lord Meadowbank, that an heir-male is heir of provision. On the whole, think the service a sufficient service as heir of provision.Cullen.—Service sufficient. There are two kinds of heirs,—heirs of line, and heirs of provision. Must think, that by serving as heir-male, meant to be served heir of provision.
President.—States difference between service as heir of line and heir-male, and service as heir of provision. No man can be served heir of provision without a deed of provision in his hand.
* The following Notes were taken by Thomas Walker Baird, Esq.:—
Lord Justice-Clerk .—If Earl David had applied to be served heir of provision, no
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An appeal was then entered against these judgments by Mr Blane, on behalf of Sir Andrew; and on the 24th of May 1805
_________________ Footnote _________________ man living could have objected. The service carried in it every description to shew that he was de facto the heir of provision. Heir-male is a character which must be assumed; not so that of heir of provision. This would go to the extent of obliging every one to serve heir of provision, wherever there was any destination whatever of, the estate. Many instances where a service as heir of provision sustained where no mention of the deed alluded to. The verdict merely to ascertain the fact that the person has the right by the destination, and not necessary to specify it. Service as heir of provision is necessary when the person serving has no connexion with the estate but in that character.
Woodhouselee enters much into considerations of hardship arising from adherence to strict forms. Desirable, perhaps, that our law should relax. But although this may be our wish in speculation, sufficient to say that ‘ita lex est.’ By the law of Scotland, a particular mode of service required, according to nature of subjects and titles. Even in case where heir de facto heir-male, of line, and provision, a sendee in the two former characters inept as to the latter.
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“It is ordered and adjudged, by the Lords Spiritual and Temporal in
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Bannalyne.— Stair, Bankton, Erskine, concur in opinion, that the heir serving must indicate his intention to assume the character. Where the heir fails to enter, the creditors charge him to enter in the different characters of heir-male, heir of line, heir of provision, to his ancestor. As to decisions, that of Haldane perfectly consistent. Very clear, interlocutor should be adhered to.
Methven.— Is at a loss for any sound principle of law on which the interlocutor should be adhered to. As the law has authorized the entry of an heir without specifying the deed he claims under, cannot see any necessity for repeating the expression, ‘heir of provision,’ nor does he see any additional clearness or distinctness would be provided by it. Inclined to alter the interlocutor.
President— Case of Drumakilu must be remembered by all the Judges, where a considerable estate passed, contrary to clear will of proprietor, through the omission of a very small piece of form. Another topic in petition, that the use of a service is to prove fact of relationship. This, if true, would afford a very short answer to every plea of the respondent But this is not the object of a service, and no such doctrine is taught in the law of Scotland. The object and use of a service is to carry heritable subjects out of the hæreditas jacens of defunct, and to vest them in claimant Never was the principle of the law of Scotland, that right of land, either real or personal, could be taken up by merely declaring a fact The form of service is necessary, and equally necessary to attend to the Character which the heir means to assume. Common sense, that a man may choose to represent ancestor in one character, without representing him in another. This appears clear as sunshine. As to general services, two kinds—one rather a general special service, applicable to case of a particular subject where no infeftment. This analogous to general special charge. There is another kind of general service much more comprehensive, i. e. a general service as heir of line, meaning to vest merely the character without touching any subject. This entitles him to take up whatever subjects are descendible to heirs of line. But this does not comprehend a general service as heir-male, and will vest no such character in the claimant. Heir-male not a character given by deed, although he may succeed to subjects so provided; but it is a general character given by law,—as much given by law as the character of heir of line itself. Question here is, whether one claiming in a general character entitled to subjects provided to special heirs? Not sufficient the fact be proved that he had right to serve; and after searching through every one of the decisions, sees no authority for such a doctrine. In Haldane's case a service tanquam propinquior et legitimus hæres. The question came to be, what the meaning of this term? It is a mistake to suppose this always means heir of line; most frequently it does; but it may mean also heir of conquest in case of elder brother serving to younger. In same way, when a son serves to father, the service as heir of line necessarily implies heir-male. It was on these grounds the Court went in Haldane's case and Earl Dalhousie's. Can see no fault in giving it such construction. In present case there would have been more doubt if claimant had stopt at propinquior et legitimus hæres. But he has defined the character masculus et lineæ. Doing the highest injustice to the memory of the honourable Judge who has been alluded to, in supposing his opinions would have been different from the interlocutor now before the Court, if he had had opportunity to consider the case as it has since been considered. Complains and laments that so much has been said of the opinion of that honourable Judge. Looks with some anxiety to the issue of this cause, for if the interlocutor altered, thinks he may bid farewell to services. This a point in which the country most deeply concerned, and hopes the Court will consider deliberately before altering the judgment.
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When the case returned to the Court of Session, Sir Andrew and his trustee maintained, that the remit embraced other lands besides those specially mentioned; whereas Lord Cassillis contended, that the only proper question remitted for consideration was, What was the legal effect of Earl David's service as to the above properties, and others depending upon a title similar to those specially mentioned? The Court, on the 10th of February 1807, pronounced this interlocutor:—
“Find, that Earl David's general service in 1776, was not a service as heir of provision, to connect him with the settlement in 1748, or with any similar deed of provision or settlement, and consequently was not sufficient to carry the subjects which were specially provided by any such deed, and were not contained in the charter 1774, or any other title-deed or charter of a similar nature: Find, that this description applies to the lands of Enoch, and Little Enoch the lands of Portmark and Polmeadow, the tenements in Maybole, and the teinds conveyed by Crawford of Ardmillan, and that they were not carried by the general service; therefore sustain the reasons of reduction as to these subjects, and so far alter their interlocutor of 16th of November 1802; repel the defences, and reduce, decern, and declare, in terms of the summons: But with regard to the lands of M'Gowanston, Mill of Drumgirloch, Dunnymuck, Whitestone, Pennyglen, barony of Greenan, and lands of Balvaird, find, that the order of the House of Lords contains no special remit as to these lands, nor has the pursuer sufficiently made out that they fall under the general remit, or that, at any rate, the interlocutors formerly pronounced as to these lands ought to be altered; and therefore
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adhere to these interlocutors, and decern;”
and to this judgment they adhered on the 24th of November. Against these judgments Sir Andrew and his trustee appealed, in so far as unfavourable to him; and the Earl also thereupon appealed in regard to the lands of Enoch, &c. (which he stated he would not have done had not an appeal been made by his opponent). To the competency of Sir Andrew's appeal, the Earl objected, that it had reference to lands, the title of which had, by the judgment of 1805, been found by the House to belong to him; whereas Sir Andrew contended, that they did not fall under the affirmance. The matter having been remitted to the Committee on appeals, they made the subjoined report. *
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* By the Lords' Committees appointed to consider of the petition of Andrew Blane, Esq appellant, in a cause depending in this House, to which the Right Honourable the Earl of Cassillis, and others, are respondents, praying that their Lordships will be pleased to take the premises into consideration, and to give such directions for the hearing of the questions which were at issue under the original appeal, and still undetermined, as to their Lordships, in their great wisdom, shall seem meet; and report to the House.
Ordered to Report,—
That the Committee have met, and considered the said petition, and have heard Counsel as well for the appellant as the respondents.
That the House having determined that it was not the intent of the House, in its judgment of the 24th of May 1805, to remit to the Court of Session to review their interlocutors, with regard to the lands of M'Gowanston, the Mill of Drumgirloch, Dunnymuck, the lands of Whitestone, Pennyglen, barony of Greenan, and lands of Balvaird, it has been represented to the Committee, that the title to these lands and subjects was in dispute in the appeal in which such judgment was pronounced: that the affirmance contained in the said judgment does not, according to the meaning of the terms of the judgment, rule the title to these lands and subjects, which, or some of which, are stated not to be lands and subjects contained in the charter of 1774, or in any similar titles: that the judgment thereof, if it contained no remit as to these lands and subjects, doth not contain the judicial opinion of the House upon the title to these lands and subjects, which was in dispute in the appeal; and that the House ought therefore now to proceed to judgment thereupon in some form, and previously to hear Counsel upon the title to these lands and subjects, it being alleged to your Committee, that upon the former hearing of appeal, during many days at the Bar of the House, the Counsel were not thereupon heard.
This supposed fact, your Committee represent as controverted on the part of the Earl of Cassillis, on whose behalf it has been insisted, not only that the title to these lands and subjects was before the House in the printed Cases of the appellant and respondent, but that it was spoken to by Counsel on his part, and on the part also of the appellant.
And your Committee find that it was represented, in the Case laid before your Lordships' House on behalf of the appellant, (the present petitioner), that in the Court below several questions had been agitated, which it had not been deemed necessary to enter minutely into in that printed Case, in as much as the points therein before stated at large, were considered by the appellant as ruling all the matters at issue in the cause; and that he should therefore only cursorily mention such other questions, reserving to
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The House of Lords then pronounced this judgment on the 9th of May 1810:—
“Find, that it was not the intention of this
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himself to argue them at the Bar of the House, if that should appear to be expedient. He then represented these questions to relate to the following classes of lands:—
First, ‘The lands of Portmark and Polmeadow, and others,’ specially mentioned in your Lordships' remit, “which it was observed were purchases made by Earl Thomas, upon which he died infeft upon base holdings, the dispositions whereof had been granted to him, his heirs and assignees; but these dispositions, as acquirenda, were ruled by the destination of the entail of 1748; and as to them there; existed no other personal right, which could be taken up by Earl David's service in 1796.”
Secondly, “The lands of Bardarroch, Daljarbrie, and the Citadel of Ayr: That these were not in the charter of 1774, but remained upon the titles which Earl Thomas had acquired therein as a purchaser; that so far they were in the same situation with the lands in the first class: That, so far they differed from them, that Earl David made up a title as heir of line, conform to the destination in the title-deeds of these lands; but that, as he made up no title under the ruling deed of 1748, his making up a title as heir of line was unessential.”
Thirdly, “The lands of M'Gowanston, Mill of Drumgirloch, and Dunnymuck, in the property of which Earl Thomas was infeft in 1748, and the lands of Whitestone, in which he was infeft in 1757: That these were included in the charter 1774, and of course fall under the general argument as to all the lands contained in that charter; but they were also affected by other questions, upon which it was contended in the Court below, that from a defect in consolidating the property with the superiority of these lands, the titles thereto made up by Earl David were from that cause also altogether ineffectual and insufficient.”
Fourthly, “The barony of Greenan and lands of Balvaird: That these formed a very considerable portion of the estate, and were not included in the charter 1774; but that they had been in 1765 parcelled out into freehold qualifications for purposes precisely similar to those which regarded the lands in the charter 1774: That Earl David, too, made up his title to the barony of Greenan and lands of Balvaird, upon the footing of the titles taken for these temporary purposes; and also as to them neglected the ruling destination in the entail of 1748: That as to them therefore, also, the general reasoning relative to the lands contained in the charter 1774 fully applied.”
The Committee, citing this statement from the printed Case of the petitioner in 1805, (then the appellant), take leave to observe, that with respect to the first of these four classes of lands, they are the subjects of express remit to the Court of Session, and not the objects of the petition.
That with regard to the second class, they are stated to differ as to title from the first, but not essentially, and that they are not understood to be the objects of the petition.
That as to the third class, they are expressly stated in the printed Case of the petitioner, 1805, (then the appellant), to be included in the charter in 1774; and the affirmance by the judgment of the House of all the interlocutors relating to the lands and subjects contained in the charter of 1774, is not qualified by any remit as to any supposed defect in consolidating the property with the superiority of these lands. (These lands are the objects of the petition.)
That as to the barony of Greenan and Balvaird, (the barony of Greenan having been particularly pointed out by the Counsel attending the Committee, as not being in a title similar to the lands contained in the charter of 1774), the House will observe, that the petitioner, the then appellant, reserved to himself to argue the title if it should be expedient; and will also observe, how far the appellant admits the reasoning relative to
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the lands contained in the charter, to apply to these subjects, though not contained in it. These subjects are also objects of the present petition
The Committee further report, that, whether the question of the title to these lands and subjects was, or was not, argued at the Bar of the House in the year 1805, the state of the title to them appears to have been before the House, with an opportunity for the then appellant, reserved by the appellant himself, fully to argue the titles to them, if it appeared expedient to argue them. They further represent, that it seems obvious that it could not possibly be the intent of the House, under the general words of the judgment, to remit to the consideration of the Court of Session the titles to the 3d and 4th classes of lands and subjects; those contained in the 3d being by the appellant stated, in his Case in 1805, to have been contained in the charter of 1774; and those contained in the 4th class, though not comprehended in the charter of 1774, being stated by the appellant in that Case of 1805, to be lands to which the general reasoning relative to the subjects comprehended in that charter fully applied. And when it is further observed, that the appellant stated those of the 4th class, “to form a very considerable portion of the estate,” it is conceived that the House, making express mention in its remit of Enoch, and the other small parts of the estate called the pendicles, could not possibly mean by its general words to remit questions with reference to the considerable parts of the estate mentioned in the 3d and 4th classes, without specifically naming any one of the lands and subjects therein contained: that the House could not possibly intend, with its attention thus far called to these lands and subjects, as a considerable part of the estates, with circumstances in the titles differing them from the titles to Enoch and the pendicles, to remit to the Court of Session the questions relative to such parts of the estates, under the words in the judgment following the express enumeration of the pendicles viz. “any other lands or subjects, the titles to which is in dispute in this cause, if any such there be not ruled by the aforesaid affirmance.”
The Committee further conceive, that it must have been the intention of the House itself, to decide upon or to direct a review of all parts of all the interlocutors which were to be considered and understood as complained of, at the time the House pronounced its judgment: That it could not intend, if its judgment was called for upon all the subjects in dispute, to remit a part of those subjects to the review of the Court of Session, to decide upon a part of them, and with respect to another part of them neither to pronounce a decision or make any remit.
And the Committee report it as their opinion, that it was the intention of the House, in its judgment, to affirm the interlocutors of the Court of Session, with respect to the lands and subjects mentioned in the petition referred to their consideration. The interlocutors, so far as they relate to the lands and subjects contained in the charter of 1774, or in any similar titles, are affirmed: And your Committee observe, that the remit to the Court is, to review the interlocutors, as to the effect of the service of Earl David in 1776.
Most of the lands mentioned in this petition are stated by the appellant's Case in 1805 to be contained in the charter of 1774; and although the words ‘similar title’ may not be accurately applied to Greenan and Balvaird, and those subjects are not contained in the charter 1774, yet, as it has been above stated, the general reasoning to the lands in the charter 1774 was represented in the appellant's Case itself as fully applying to them; and the titles as to these, your Committee understand to have been made up by Earl David, by precept of clare constat for infefting himself. The Court of Session, though they were of opinion that the remit of the House did not authorize them to review their
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Thereafter, in 1825, (the interlocutors in the action of exhibition not having been extracted), Sir Andrew, availing himself of the standing order of the House of Lords, appealed against them.
Appellant.—The appellant is entitled to the benefit of the process ad deliberandum in the character in which he sues. As heir, he has right to see the deeds which belonged to his ancestors; and it is no answer to say that one has been executed by which his title to the estate is cut off. This is a mere petitio principii, because the question is, whether his right is cut off? and by law he is entitled to see all the deeds in order to be satisfied on that point.
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interlocutors as to the subjects of the present petition, did review them, and upon the merits adhered to their former judgment against the petitioner.
But your Committee are further of opinion, upon looking through the papers in the cause which were before your Lordships, that it would be of very dangerous example to permit these questions to be discussed now at your Lordships' Bar; and that, if the judgment of the House is to be represented by the petitioner as not intended to affirm in its terms the interlocutors with respect to those lands and subjects, and to have been pronounced without any manner of discussion having taken place upon the questions relative to them, the appeal, under all the circumstances of this case, ought to be considered as having been passed from, or waived as to these questions, and that the interlocutors therefore of the Court of Session ought to be considered as final. Upon the whole circumstances, therefore, the Committee submit to the House, that it may be expedient to resolve, that the petitioner ought not now to be heard upon the questions relative to these lands and subjects, and that the interlocutors of the Court of Session relative to them ought either to be understood as already affirmed in the judgment of this House, or that, under such circumstances, if, in a strict construction of the terms of the judgment, they are not so affirmed, the House ought to explain the judgment, and affirm them, or declare that the interlocutors of the Court of Session with respect thereto ought now to be considered as final.
Which report being read by the Clerk, was agreed to by the House, and the petition ordered to be rejected.
Page: 266↓
Respondents.—It is settled law, that a disposition or entail, excluding the heir of law, and conferring the right to the estate on a stranger, deprives the heir of his right to an action of exhibition, unless he shall succeed, in the first place, in setting the deed aside. But the entail of Earl David has been recognized and acted on for more than thirty years, and it is not competent, under an action of exhibition ad deliberandum, to allow the heir to ransack the charter-chest in order to find out grounds for reducing the deed which excludes him.
The House of Lords “ordered and adjudged, that the appeal be dismissed, and the interlocutors complained of affirmed, with L. 200 costs.”
Appellant's Authorities.—3. Stair, 5. 1.; 4. Stair, 33. 4.; 3. Bankton, 5. 7.; 3. Ersk. 8. 56.
Respondent's Authority.—4. Ersk. 8. 56. and cases there.
Solicitors: Spottiswoode and Robertson— J. Chalmer,—Solicitors.