Bosville v. Lord Macdonald and Another [1910] ScotLR 328 (28 January 1910)

Bosville v. Lord Macdonald and Another [1910] ScotLR 328 (28 January 1910)

The pursuer is not barred by mora, taciturnity, acquiescence, res judicata, or the prior compromise and Act of Parliament from seeking a declarator of his grandfather's legitimacy. The prior service of the defender's ancestor as heir of line and tailzie does not preclude the pursuer from seeking service as heir-male. The pursuer has sufficient interest to bring the action. The action is competent except as regards the conclusion seeking a declaration of heirship, which is for the Sheriff of Chancery.

Citation
[1910] ScotLR 328
Parties
Pursuer/applicant: Alexander Wentworth Macdonald Bosville; Defender/respondent: Right Honourable Ronald Archibald (sixth) Lord Macdonald of Slate; Defender/respondent: Honourable Godfrey Evan Hugh Macdonald (curator bonis)
Jurisdiction
Scotland
Judgment Date
28 January 1910
Procedural Posture
Action of Declarator / Inner House, First Division, on Reclaiming Motion (appeal) From Lord Ordinary
Outcome
Lord Ordinary's interlocutor affirmed; action dismissed as incompetent as regards declaration of heirship; proof allowed on legitimacy issue; pleas of bar repelled.
Legal Topics
Legitimation Per Subsequens Matrimonium, Personal Bar, Mora, Res Judicata, Service of Heirs, Domicile, Declarator of Legitimacy
Family Law Succession Law Private International Law Legitimation Per Subsequens Matrimonium Personal Bar Mora Res Judicata Service of Heirs +2 more

Case Brief

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Parties

Alexander Wentworth Macdonald Bosville

Pursuer/applicant

Right Honourable Ronald Archibald (sixth) Lord Macdonald of Slate

Defender/respondent

Honourable Godfrey Evan Hugh Macdonald (curator bonis)

Defender/respondent

Procedural Posture

Action of Declarator / Inner House, First Division, on Reclaiming Motion (appeal) From Lord Ordinary

Legal Issues

  1. 1 Whether the pursuer is barred by mora, taciturnity, acquiescence, or res judicata from seeking a declarator of his grandfather's legitimacy per subsequens matrimonium; Whether the prior compromise and private Act of Parliament settling the estates precludes the present action; Whether the service of the defender's ancestor as 'eldest lawful son and nearest and lawful heir' in 1833 bars the pursuer's claim; Whether the pursuer has sufficient interest to seek declarator of his grandfather's legitimacy.

Ratio Decidendi

The pursuer is not barred by mora, taciturnity, acquiescence, res judicata, or the prior compromise and Act of Parliament from seeking a declarator of his grandfather's legitimacy. The prior service of the defender's ancestor as heir of line and tailzie does not preclude the pursuer from seeking service as heir-male. The pursuer has sufficient interest to bring the action. The action is competent except as regards the conclusion seeking a declaration of heirship, which is for the Sheriff of Chancery.

Court Disposition

Lord Ordinary's interlocutor affirmed; action dismissed as incompetent as regards declaration of heirship; proof allowed on legitimacy issue; pleas of bar repelled.

Orders

  • Action dismissed as incompetent so far as it seeks declaration of heirship;
  • Pleas of irrelevancy, mora, res judicata, and bar by prior service repelled;