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United Kingdom House of Lords Decisions |
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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> William Whyte, Portioner in Abernethy, and Anne Sharp, Daughter of James Sharp, Weaver in Newburgh, deceased, the original in this cause v. James Stewart, Carrier in Dunkeld [1806] UKHL 5_Paton_60 (28 February 1806) URL: http://www.bailii.org/uk/cases/UKHL/1806/5_Paton_60.html Cite as: [1806] UKHL 5_Paton_60 |
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Page: 60↓
(1806) 5 Paton 60
CASES DECIDED IN THE HOUSE OF LORDS, UPON APPEAL FROM THE COURTS OF SCOTLAND, FROM 1753 TO 1813.
No. 4
House of Lords,
Subject_Reduction of Service — Propinquity. —
Circumstances in which a service set aside.
This was a competition in regard to the succession of the deceased James Stewart, which rested chiefly on the facts adduced in proof, as to which of them was the nearest heir entitled to be served and to succeed to the deceased.
The service of the respondent, James Stwart, had been first expede; and so left no room, it was contended, for a second service in name of James Sharp; but James Sharp also served himself heir, and mutual actions of reduction were brought by the parties against each other, to set aside the one service as adverse to the other.
Nov. 29, 1799.
The Lords, of this date, pronounced this interlocutor:—“Having advised this petition, with additional petition for James Stewart, and answers for James Sharp, sustain the reasons of reduction in the action brought by James Stewart; and reduce, decern, and declare accordingly; repel the reasons of reduction in James Sharp's action, assoilzies James Stewart therefrom, and decern.”
The appellant preferred a reclaiming petition against this interlocutor, in which he admitted, that unless he could prove that he was the lawful heir of James Stewart, he could not challenge the respondent's service. He also seemed to admit that the proof he had brought was not only inconsistent with his service, the degree of relationship being altogether different; that several important links of the chain had been altogether omitted, and no evidence brought that James Stewart, in the island of Lewis, or his son and daughter, said to be the connecting links between the ancestors of the appellant and James Stewart, ever existed. But it was maintained, that the Court might nevertheless warrantably decide in favour of the appellant, on two grounds; 1st, An alleged general opinion or reputation, during James Stewart's life, and afterwards, that the appellant was his nearest and lawful heir; and, 2dly, The declarations of James Stewart himself
Page: 61↓
Nov. 18, 1800.
Against these interlocutors James Sharp brought an appeal to the House of Lords, and, dying during its dependence, Anne Sharp, his daughter, carried it on.
After hearing counsel, it was
Ordered and adjudged that the interlocutors complained of be, and the same are hereby affirmed.
Counsel:
N. B.—No Appellant's case printed.
For Respondents. —
R. Craigie,
J. P. Grant.
Note.—Unreported in the Court of Session.
