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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Gordon v Earl of Stair [1835] CA 13_1073 (8 July 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS1073.html
Cite as: [1835] CA 13_1073

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SCOTTISH_Shaw_Court_of_Session

Page: 1073↓

Gordon

v.

Earl of Stair
No. 333.

Court of Session

1st Division

July 8 1835

Lord Gillies, Lord President, Lord Mackenzie

Lieutenat-Colonel John Gordon,     Pursuer.— Sol.-Gen. Cunninghame— Russell. Earl of Stair,     Defender.— Keay.

Subject_Tille to Parsne—Foreign—Jaihcial Faclor.—

Question, whether a Comminee appointed by the Lord Chancellor to the person and estate of a Scotswoman in a state of mental alicnation, Who was originally domiciled in Scotland, but after her lunacy was removed into England, had a title to raise an action for obtaining and vesting in the Committee, heritable security for payment of an annuity due to the lady.

In 1819, the present Earl of Stair, then Mr Dalrymple, granted a bond of annuity of £300 to his wife, Mrs Dalrymple, payable termly at Whitsunday and Martinmas, for her aliment diring her life. He bound himself, on succeeding to the earldom and entailed estate, to execute and deliver to her “all deeds necessary, containing precepts of sasine and all other usual clauses, for completely securing her in payment of her said annuity, forth of the said lauds and estate, from and after my succession thereto in terms of the tailzie—or otherwise, in her option, to settle and secure the payment of the Haul annuity to her satisfaction.”

Thereafter, the lady having fallen into a state of mental alienation, Lieutenant-Colonel John Gordon of Cluny, her brother, obtained a grant of the custody of her person, and the management of her estate, as Committee named by the English Court of Chancery. The Earl allowed the annuity to run into arrears, amounting to £2242, 10s., after which, he granted a bond for that sum, along with William Leggat of Barlockhart, his factor, to Lieutenant-Colonel Gordon, on the narrative, “that the said John Gordon has right to demand and receive payment of the said sum, as Committee acting for the said Mrs Joanna Gordon or Dalrymple, his sister, conform to grant of the custody of the person and management of the estate of his said sister, in his favour, from the High Court of Chancery.” The contents of this bond were paid; but farther arrears having accrued, Colonel Gordon raised an action against Lord Stair, concluding for payment; and farther, that his Lordship should be “decerned and ordained to execute and deliver to the said Mrs Joanna Gordon or Dalrymple, or to the pursuer as her Committee foresaid, for her behoof, all deeds necessary, containing precepts of sasine, and all other usual clauses, for completely securing her in payment of the said annuity forth of the said lands and estate of the earldom of Stair, or any other estate belonging to the defender, during all the days and years of the life of the said Mrs Joanna Gordon or Dalrymple; or otherwise, in case it may be found that the defender cannot legally give the pursuer any valid and effectual heritable security for the said annuity, in terms of the said bond, then he ought and should be decerned and ordained to make payment to the pursuer, as Committee foresaid, of the sum of £6000 sterling, less or more, as a capital sum, whereby the said annuity stipulated to be paid by the defender to the said Mrs Joanna Gordon or Dalrymple, may be purchased, and payment thereof in future secured, either from the public funds, or from any established company of repute, who are in use to sell such annuities; it being hereby declared, that on such investment or payment being made, the prior conclusions of the pursuer for future annuities shall be departed from.”

In defence, Lord Stair alleged that the lady was, by birth, a Scotswoman, and that she had continued to be a domiciled Scotswoman so long as she was of sound mind and free to choose a domicile; and that she had been removed to England by her brother after she fell into a state of imbecility—he therefore pleaded, as a preliminary defence, that she must be viewed as never having changed her Scottish domicile, and that, until she was cognosced by a Scottish jury, there was no party authorized to prosecute actions on her behalf in a Scottish court; and that this was, at all events, incompetent, where the object of the action was to acquire a feudal right in a landed estate, for, even if acquired, it could not be competently held by the English Committee of a lunatic.

Colonel Gordon answered, that his right to recover the arrears of this annuity had been acknowledged by the defender when he granted the bond for £2242, 10s. of arrears, and paid them; and that if the Committee could enforce payment, he could equally insist for a security, whether real or personal. He was entitled to have led an adjudication, and this action, which concluded for heritable security, was equally competent.

The Lord Ordinary “repelled the preliminary defences.”

Lord Stair reclaimed.

Lord Gillies.—It is alleged that this lady was a Scotswoman by birth and by domicile, until the period when she is said to have become lunatic, and to have been taken to reside in England. A Committee has been named in that country by the Court of Chancery. But no proceedings to cognosce the lady have been adopted here, and I doubt whether we can sustain an action by the Committee to affect Scottish heritage, belonging to the defender, a Scotsman, and to vest it in the Committee for behoof of the lunatic. If the converse of the case had occurred, and we had cognosced an Englishman, whose domicile was English, but who had been brought here, I apprehend that the title of the curator named by us would not have been sustained in England in actions affecting heritable estate there. And I conceive there ought to be a reciprocity between the two countries. If there was no heritable estate concluded for, under this action, it would be quite a different question.

Lord President.—It is difficult to see what interest the pursuer can have to raise this question, since, for any thing that appears, he might sufficiently protect himself by using arrestments of the defender's rents.

Lord Mackenzie.—The question, whether the Committee could lead an adjudication, seems to be attended with difficulty, and it does not require to be decided now. In regard to this action, I think it contains conclusions, as to which I am not prepared to sustain the pursuer's title. I refer to those conclusions which are intended to compel the defender to grant heritable security to the English Committee.

It was intimated by the Court, that all difficulty would be removed, if the pursuer put in a minute restricting the conclusions of his libel to those which were of a personal nature. The pursuer stated that he would do this, and thereafter he lodged a minute, stating, that, to obviate any farther discussion of the right to insist for heritable security, under the first alternative of the second conclusion of the summons, as above quoted, he confined his demand at present to the first conclusions of his summons, viz., for payment of arrears, and to the last alternative of the second conclusion, viz., for payment of a capital sum of money, whereby the future annuities might be secured by purchasing an annuity of £300 per annum from the public funds, or any established company of repute. He, therefore, moved the Court, “in respect of this minute, to find it unnecessary to consider the reclaiming note, so far as regards the first alternative of the second conclusion of the libel; quoad ultra, to refuse the desire thereof, and remit to the Lord Ordinary to proceed accordingly.”

The Court having resumed consideration of this case, with this minute of restriction, found it unnecessary to consider the reclaiming note, so far as regards the first alternative of the second conclusion of the summons; quoad ultra, refused the desire of the reclaiming note, and remitted to the Lord Ordinary to proceed accordingly.

Solicitors: J. Bennett, W.S.— J. and A. Smith, W.S.—Agents.

 SS 13 SS 1073 1835

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URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS1073.html