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Marquess of Stafford v. Duke of Sutherland [1892] ScotLR 29_432_1 (27 February 1892)
URL: http://www.bailii.org/scot/cases/ScotCS/1892/29SLR0432_1.html Cite as:
[1892] ScotLR 29_432_1,
[1892] SLR 29_432_1
Subject_1Appeal to the House of Lords Subject_2Leave to Appeal Subject_3Entail.
Facts:
Circumstances in which the Court, in a petition for authority to disentail,
refused an application for leave to appeal to the House of Lords against an interlocutor repelling objections to the competency of the petition.
Headnote:
On 26th February 1892 the Marquess of Stafford presented a petition for leave to appeal to the House of Lords against the interlocutor pronounced by the Lord Ordinary on 15th December 1891, and the interlocutor of the First Division adhering to the same.
He argued—It was the practice of the Court to allow an appeal where there was a separable case for appeal, and where the result of the appeal might save litigation by putting an end to the whole proceedings—
The Lord Advocate v. The Duke of Hamilton, December 17, 1891,
29 S.L.R. 272.
The Duke of Sutherland opposed the application, and argued—The Court was always disinclined to grant an application of this kind where that might lead to there being two appeals instead of one. Especially was this the case in proceedings of the present kind where the death of one of the parties would render the whole proceedings abortive. The case of
The Duke of Hamilton was quite different. There the reversal of the decision of the Court of Session would render a long and intricate inquiry unnecessary, but here there was no reason why the inquiry should be long or difficult.
At advising—
Judgment:
Lord Adam—This is an application by the Duke of Sutherland for authority to disentail, and we have decided that he has a title to insist in it, and to have the part of the estate disentailed which he desires to have disentailed. It appears to me that in such a matter the Duke has a pre-eminent interest to have the case decided with as little delay as possible, for the reason which has been suggested, namely, that if any mischance occurs the whole proceedings may prove abortive, and by allowing the delay which an appeal occasions we are increasing the chance of such an occurrence. That, I think, is a very material consideration for refusing leave to appeal at this stage.
When we look at the interest of the other side, no doubt we find that they have
Page: 433↓
an interest to have the question of their right to prevent this application being proceeded with decided before further proceedings under the petition are taken, but that is not so strong an interest as the interest of the petitioner to have the matter determined without delay.
Looking to these considerations, I think we should refuse the application.
Lord M'Laren—It seems to me that it may now be regarded as an established practice in entail petitions that, unless in exceptional circumstances, leave to appeal to the House of Lords against an interlocutory judgment of this Court will not be granted, the reason being that the death of any of the parties to such a proceeding materially alters the conditions of the question. The right may be lost altogether, or at any rate a new party will intervene in the proceedings. The case is not so strong here as in some instances, because the application is not for a disentail of the whole estate, but it is difficult to draw a distinction between one case and another on that ground, because what is a small part of one estate may be as large as the whole of another estate of smaller size. I am rather in favour of refusing the application.
Lord Kinnear concurred.
Lord President—I was at first impressed by the consideration that there are here legal questions of magnitude and importance which are undoubtedly detachable from the sequel of the case. On the other hand, there is very great weight in what has been advanced by Lord Adam, and I have come to think that the balance of considerations is in favour of refusing this application. Two points weigh with me in coming to this conclusion. The first is, that having regard to the relative interests of the disputants, the peculiarity of proceedings of this kind that the death of the petitioner before decree terminates the litigation, gives the Duke an exceptional right to be considered. In the second place, I do not think, after all, that the proceedings here will necessarily or naturally be of a highly complicated character. I sympathise greatly with the difficulties the parties may have in working out the subsequent procedure so as to promote their own pecuniary interests without hampering their argument on the main question; but the responsibility for this rests with themselves, and I am afraid we are not called upon to delay proceedings by allowing an appeal to the House of Lords merely in order to facilitate their dialectics.
The Court refused the petition.
Counsel:
Counsel for the Duke of Sutherland—
C. S. Dickson—
Don Wauchope. Agents—
Tods,
Murray, & Jamieson, W.S.
Counsel for the Marquess of Stafford, &
c.—D.-F. Balfour, Q.C.—
Dundas. Agents—
Macpherson & Mackay, W.S.
