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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Watson v Watson [1835] CA 13_543 (25 February 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0543.html Cite as: [1835] CA 13_543 |
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Page: 543↓
Subject_Service—Process.—
A party obtained a general service as heir of a deceased, to whom he claimed through a granduncle: two other parties, in the knowledge of the prior service, and without giving notice to the party served, afterwards obtained a general service as heirs-portioners of the deceased, to whom they claimed through an uncle, and neither of the competitors got possession—held, in a reduction of the second service (a counter-reduction of the first service being stated), and after a supplementary proof in support of the second service was allowed, 1. that the knowledge of the first service, and the concealment of the second, was no objection to that service; and, 2. that the propinquity of the heirs-portioners being proved, their service was good.
On the death of Alexander Watson, town-clerk of Port-Glasgow, who left considerable property, Alexander Watson, weaver in Houstoun, took out a brieve for serving himself nearest and lawful heir, stating himself to be descended from a granduncle of the deceased. He expede a general service, without opposition, before the Magistrates of Renfrew, on 17th November, 1827. On the 29th of April, 1829, Ann Watson, wife of William Glass, residing in Perth, and Isobel Watson, wife of George M'Cash, shoemaker in Perth, expede a general service as nearest and lawful heirs-portioners in general to the town-clerk. They were in the knowledge that Alexander Watson had been served, and he had lodged a caveat in Exchequer, but six months had expired from the date of lodging it; and no notice was given to him of the contemplated service. Ann and Isobel Watson stated themselves to be descended from an uncle of the deceased, and thus, if their pedigree was proved, their right was preferable to that of Alexander Watson, whether his pedigree was true or not. The service was expede before the Sheriff of Perth, and proceeded in absence of Alexander Watson.
The disputed succession had been, in the mean time, placed under the care of a judicial factor, and none of the competitors obtained possession of it.
Ann and Isobel Watsons raised a reduction of the service of Alexander Watson, and he raised a counter-reduction of their service.
After a record was closed in both actions, the Lord Ordinary, in the action pursued by Alexander Watson, “in respect that the defenders offer to support the proof of their propinquity, as set forth in their claim in the service under reduction, by other and supplementary evidence, found that it is competent for them to lead such additional proof in this reduction, and allowed them a proof accordingly, and to the pursuer a conjunct probation.” His Lordship “reserved all questions as to the other grounds of reduction;” and, at the same time, sisted process hoc
A proof was taken, and the Lord Ordinary ordered cases, and issued the subjoined note. * Besides an argument on the import of the proof, Alexander Watson contended, that as the heirs-portioners had, in the knowledge of his service, stolen out their own, it ought to be set aside, in order that he might have an opportunity of appearing and being heard before the Jury. The Court, being satisfied that the evidence of the propinquity of Ann and Isobel Watsons was not only as complete as could be expected in the circumstances, but was enough to produce the conviction that they truly were related to the deceased in the precise degree in which they had claimed and been served, assoilzied them from the reduction at the instance of Alexander Watson.
_________________ Footnote _________________
* “ Note.—It is necessary to call the attention of the parties particularly to one point, on which the ultimate extrication of the case may, in a certain extent, very much depend. The record was prepared, and the additional proof allowed in this reduction, at the instance of Alexander Watson, while the counter-reduction, at the instance of the defenders, stood sisted mainly on this principle, that if it should appear that the propinquity of the defenders, Ann and Isobel Watson, was made out, there would be an end of the cause, and it would be unnecessary to discuss the merits of the pursuer's claim or service, seeing that the former claim in a nearer degree. But if it should be the opinion of the Court, that the propinquity of the defenders is not proved, it may not necessarily follow that their service is to be reduced at the instance of the pursuer, without trial of the merits of his service, and allowing him, if he desires it, in the other action to lead additional proof, or the pursuers in that action to impeach his propinquity by evidence. The Lord Ordinary does not mean to give any opinion on that question; he only thinks that it is very material that it should be attended to in preparing the Cases.”
Solicitors: Patrick and Crawford, W.S.— M'Kenzie and M'Farlane, W.S.—Agents.
