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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Menzies v. M'Kenna and Others [1914] ScotLR 205 (16 January 1914)
URL: http://www.bailii.org/scot/cases/ScotCS/1914/51SLR0205.html
Cite as: [1914] ScotLR 205, [1914] SLR 205

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SCOTTISH_SLR_Court_of_Session

Page: 205

Court of Session Inner House Second Division.

Friday, January 16. 1914.

[ Lord Ormidale, Ordinary.

51 SLR 205

Menzies

v.

M'Kenna and Others.

Subject_1Jurisdiction
Subject_2Court of Session
Subject_3Declarator
Subject_4Declarator of Heirship without Executorial Conclusions — Competency.
Facts:

An action of declarator that the pursuer was the nearest lawful heir of line of A, brought in order that the pursuer might obtain such evidence of descent as would assist him in a claim to have his name inserted in an official roll of baronets instituted by Royal Warrant,

Page: 206

held incompetent, in respect that (1) the Court of Chancery is alone entitled to declare propinquity when no question of heritable right is involved, and (2) the Court of Session will not investigate disputed questions of fact for the mere purpose of aiding a pursuer to maintain a claim elsewhere and not with a view of their decree being operative.

Headnote:

David Prentice Menzies, Plean Castle, Menzieston, Stirlingshire, pursuer, brought an action against the Right Honourable Reginald M'Kenna, His Majesty's Secretary of State for the Home Department, and others, defenders, the officials nominated under Royal Warrant dated 8th February 1910, for the purpose of preparing an official roll of baronets, for declarator that the pursuer was “the nearest lawful heir-male of line of Captain James Menzies of Comrie, Perthshire, who was born at Castle Menzies, in the parish of Weem and county of Perth, in or about the year 1663, and died at Comrie Castle, formerly in the parish of Weem and now in the parish of Dull and county of Perth, in or about the year 1748.”

The pursuer averred—“(Cond. 2) The pursuer is the nearest lawful heir-male of line of the said Captain James Menzies of Comrie by the following chain of descent:—“…

[ The pursuer then narrated the chain of descent.]…”

The defenders pleaded, inter alia—“(1) The action is incompetent and ought to be dismissed.”

On 23rd January 1913 the Lord Ordinary ( Ormidale) sustained the first plea-in-law for the defenders and dismissed the action.”

Opinion.—“This is an interesting point, and one which is of importance to the pursuer, and if I had any doubt on the matter I would have taken time to consider my judgment. But dealing only with the point of competency, and leaving out of view entirely the second question argued, whether there being but a bare declarator the action is incompetent on that ground, I think the question is already decided by the case that was cited by the defenders, namely, the case of Bosville v. Lord Macdonald, S.C. 1910, p. 597. In the observations made by Lord Skerrington in that case I entirely concur, and it seems to me, therefore, that this case is ruled by the judgment which he pronounced. Besides, while it is said in the rubric to have been acquiesced in, an argument is reported to have been submitted for and against it, although there is an observation by the Lord President which seems to show that the reclaimers did not press their contention, but agreed finally that the question was one for the Sheriff of Chancery.

The only ground which Mr Menzies suggests distinguishes the present case from the case of Bosville is that a Royal Warrant dealing with the preparation and keeping of a roll of baronets, and providing for the procedure to be followed by any person desiring to be enrolled, was issued subsequent to the decision in Bosville's case, but it seems to me that while that is historically quite correct, the warrant has not made any real difference in the course that a person in the position of the present pursuer ought to follow in the initial stages of his endeavour to prove his propinquity. I do not adjudicate upon the matter at all, but it seems to me that the point stated in the letter of the Lyon King—of—Arms of 24th January 1911 and the question he raises there might be answered—I do not say that it would, but as at present advised I am inclined to think that it might be answered—by the pursuer presenting to the Secretary of State through the Lyon King a service obtained in the Court of Chancery showing that he was what he wants this Court in the present action to declare him to be, namely, the nearest lawful heir-male of line of Captain James Menzies.

Accordingly, following the decision of Bosville v. Lord Macdonald, so far as it deals with the question here raised, I must hold the present action incompetent, and dismiss it.”

The pursuer reclaimed, and argued—The present action was competent— Stewart & Company v. Sillars, January 27, 1906, 13 S.L.T. 800. This was the only case where a pure declarator of fact without an executorial conclusion had been held competent. The authority set up by Royal Warrant was the equivalent of the arbiter in that case. The Royal Warrant altered the situation, and made the case of Bosville v. Lord Macdonald, 1910 S.C. 597, 47 S.L.R. 328, founded on by the Lord Ordinary, no longer applicable. The object of the present action was to obtain a proof of the pursuer's descent which would be accepted by the Home Secretary and by the Privy Council, who had exclusive jurisdiction as to admissions to the roll. A service in Chancery would not serve that purpose, as it would be obtained on an ex parte statement and in the absence of proper contractors, and would not be accepted as proof of descent— Sir Hugh Mitchell's Claim, The Times, March 12, 1912. A judgment obtained in the Court of Session, on the other hand, though not binding, would be treated with respect, because it would be a judgment obtained against the proper contradictor. The Court of Session ad allowed a proof of propinquity in the case of the Earl of Lauderdale v. Wedderburn, 1908 S.C. 1237, 45 S.L.R. 949, and per Lord M'Laren at pp. 1250 and 1251, on the true construction of the case of Officers of State v. Alexander, May 25, 1866, 4 Macph. 741, 2 S.L.R. 34.

Argued for the defenders—The action was incompetent. The Court of Session had no jurisdiction in the first instance in actions of this character. Such actions could only be originated in the Court of Chancery, and the Royal Warrant founded on by the pursuers could not alter the law of Scotland in this matter—Stair, iv, 1, 43; Mackay's Manual of Practice, p. 118; Bosville v. Lord Macdonald ( cit.); Officers of State v. Alexander ( cit. sup.); Moncreijf v. Lord Moncreiff, July 20, 1904, 6 F. 1021, 41 S.L.R. 850. The Court would not, in any event, grant declarator without executorial conclusions— Allgemeine Deutsche Credit Anstalt v. Scottish Amicable Life Assurance Society, 1908 S.C. 33, 45 S.L.R. 29. The defender also referred to Norris v. Gilchrist,

Page: 207

January 14, 1847, 9 D. 466 ( per Lord Justice-Clerk Hope at p. 474), on the value of services as evidence.

Judgment:

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,

Page: 208

namely, helpless and unable to take any further step. It is quite clear from the documents referred to on record that if he served he would at all events be in a position to make renewed application, and that his services, if tendered, would certainly be considered by the Secretary of State in the first instance, who might refer it to the Privy Council. If the pursuer wants to take any further step he has this course clearly open to him. Whether it would advantage him or not in the end it is not for us to say.

Lord Dewar concurred.

The Lord Justice-Clerk was absent, and Lord Dundas was sitting in the Extra Division.

The Court adhered.

Counsel:

Counsel for the Pursuer and Reclaimer— A. J. P. Menzies— Maclaren. Agents— Bruce & Black, W.S.

Counsel for the Defenders and Respondents— Lyon Mackenzie, K.C.— Gillon. Agent— Sir W. S. Haldane, W.S.

1914


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