Marquess of Bute's Trustees v. Crawford [1914] ScotLR 432 (17 March 1914)

Marquess of Bute's Trustees v. Crawford [1914] ScotLR 432 (17 March 1914)

The superior, as a condition of claiming a casualty due on the death of the last-entered vassal, must prove the fact of the vassal's death. The burden does not shift to the defender to prove the vassal is alive. The authorities cited do not relieve the superior from proving this positive fact, only from proving the negative of continued non-entry.

Citation
[1914] ScotLR 432
Parties
Pursuer: Marquess of Bute's Trustees; Defender: Jemima Crawford
Jurisdiction
Scotland
Judgment Date
17 March 1914
Procedural Posture
Civil / Reclaiming Motion (appeal) Against Lord Ordinary's Interlocutor
Outcome
interlocutor adhered to; reclaiming motion refused
Legal Topics
Superior and Vassal, Casualty on Death of Vassal, Burden of Proof, Declarator of Non Entry
Property Law Feudal Law Scottish Conveyancing Superior and Vassal Casualty on Death of Vassal Burden of Proof Declarator of Non Entry

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Parties

Marquess of Bute's Trustees

Pursuer

Jemima Crawford

Defender

Procedural Posture

Civil / Reclaiming Motion (appeal) Against Lord Ordinary's Interlocutor

Legal Issues

  1. 1 Whether the superior must prove the death of the last-entered vassal to claim a casualty under Scottish feudal law
  2. 2 Whether the burden of proof lies on the superior or the defender regarding the vassal's death

Ratio Decidendi

The superior, as a condition of claiming a casualty due on the death of the last-entered vassal, must prove the fact of the vassal's death. The burden does not shift to the defender to prove the vassal is alive. The authorities cited do not relieve the superior from proving this positive fact, only from proving the negative of continued non-entry.

Court Disposition

interlocutor adhered to; reclaiming motion refused

Orders

  • The pursuers are required to prove the death of George Walker as a condition of their claim for casualty.
  • Proof of averments allowed as previously ordered.