BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £5, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
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 |
[New search] [Printable PDF version] [Help]
Page: 205↓
[
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.
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.
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.
Page: 208↓
The
The Court adhered.
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.