Scottish Court of Session Decisions

In this application by Captain Hamilton of Dalzell for leave to excamb, a preliminary point was raised as to the sufficiency of the consents, which, as it was of some general importance, and not free from difficulty, the Lord Ordinary (Mure) reported for decision. The point was thus explained in the Lord Ordinary's note:—

“It is raised under the 5th section of the statute 11th and 12th Victoria, cap. 36, which seems to require that the heirs, on whose consents an excambion may be made in such a case as the present, must be those who are the three nearest heirs, both at the date of the consents, and at the date of presenting the application. In the present case the consents were not produced with the petition, as the statute does not require this to be done; and it was probably omitted in consequence of one of the nearest heirs, Mr George Hamilton Lawson, being then on foreign service. A considerable time having, however, elapsed between the date when the application was presented and the remit to the reporter, it appears

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that in the meantime Mr Hamilton Lawson died, without having executed any deed of consent, and that a nearer heir had also been born. So that if the statute is to be read as requiring that the heirs who consent must be those who are the nearest in existence at the date both of the application and of the consents, it will be impossible for the petitioner to carry through the excambion under the present petition.

The only case to which the Lord Ordinary was referred, as bearing upon the question, is that of Burton, noted in Mr Duncan's “Manual,” p. 347, and reported in 13 D. p. 40, but not upon the point now raised. In that case a nearer heir was born between the date of the remit to the reporters and the date when the tutor ad litem to one of the nearest heirs in existence at the date of the application executed a deed of consent as tutor of that heir. In that state of matters, the Court, before disposing of the case, granted warrant for serving the petition on the second son of the petitioner; and a tutor ad litem having been appointed to him, who executed a deed of consent on his behalf, the prayer of the petition was granted.

Had the circumstances of this case been substantially the same as those in that of Burton, the Lord Ordinary would not have taken it to report. But it is to be observed, that although in that case a nearer heir was born, after the petition was presented, for whom a consent was given, the heirs who were the nearest at the date of the application were all of them still in life, and had all executed consents to the excambion. So that the Court had, in that case, the consents of the heirs who were the nearest heirs at both of the dates mentioned in the 5th section of the statute, as well as of the heir subsequently born; whereas, in the present case, the consent of one of the three nearest heirs at the date of the application cannot now be obtained.

There is a subsidiary point raised as to the form of the deeds of consent—viz., whether it is necessary, under the provisions of the Act of Sederunt, to set forth the terms of the destination ad longum in the consents. The Lord Ordinary is disposed to think that this is not imperative, and that it is sufficient if enough of the destination is inserted distinctly to identify the entail, and this, he understands, has been done in the present case.”

After hearing counsel for the petitioner, the Court held that they could not get over the difficulty, and remitted to the Lord Ordinary to give effect to the objection under section 5 of the Act.

It was mentioned that the subsidiary difficulty referred to at the close of the Lord Ordinary's note might have been overcome, but it was recommended that, in the event of a new petition being presented, it should be avoided.