James Galbraith - T.H. Mille - Sandford v. Richard Galbraith - Sir Charles Wetherel - Lushington [1831] UKHL 5_WS_84

UKHL
James Galbraith - T.H. Mille - Sandford v. Richard Galbraith - Sir Charles Wetherel - Lushington
[1831] UKHL 5_WS_84
Held (affirming the judgment of the Court of Session), in a question as to the validity of a service, that there was sufficient evidence before the jury to prove that the party served was the substitute called in a deed of entail,—the party challenging having failed to establish the existence of any other person to whom the designation in the entail could apply.James Galbraith of Balgair executed in 1705 a deed of entail, by which he conveyed the lands of Balgair to himself and the heirs of his body, whom failing:—1. To John Galbraith, eldest son of George Galbraith, merchant burgess in Edinburgh; 2. James, second son of George Galbraith; 3. “Major Hugh Galbraith, in the kingdom of Ireland, son of the deceased Andrew Galbraith, the entailer's father's brother consanguinean;” 4. Captain Robert Galbraith, in the kingdom of Ireland; 5. John Galbraith of Old Graden; 6. Archibald Buchanan of Drumhead, and such of his sons as the entailer should point out; 7. John Galbraith, in Hill of Balgair, and the heirs male of their several bodies respectively; whom all failing, to certain other substitutes.The entailer left no issue, and in 1794 the first and second branches of the substitution became extinct. Advertisements were thereupon published, calling on the heirs next in succession to come forward; in consequence of which brieves were obtained by Richard Galbraith in 1806, claiming as heir male of Major Hugh Galbraith, the third substitute in the entail; and by William Arthur Galbraith, who claimed as representing Captain Robert Galbraith, the fourth substitute. A competition ensued, in which Richard Galbraith established his descent from a Major Hugh Galbraith of Capahard, in

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In 1820 a James Galbraith, after being served heir male of John Galbraith in Hill of Balgair, the seventh substitute, raised the present action of reduction improbation, concluding to have Richard's service set aside, on the ground that there was no sufficient evidence laid before the inquest that his ancestor was Major Hugh Galbraith, the third substitute in the entail, to warrant the service, and to have it found that he, James, was entitled to possession of the estate. Richard objected to the pursuer's title, but the Lord Ordinary sustained it; and the Court, on the 21st of December 1821, adhered “to the effect of sustaining the pursuer's title to insert in the reductive conclusion of the respondent's libel, reserving consideration as to all other points of the libel.” * Thereafter the Lord Ordinary found, on the merits, “That in the absence of all proof existing or offered to the contrary, the circumstances proven on the side of the defender afford sufficient grounds for inferring that Major Hugh Galbraith, of whose body the defender is heir male, was Major Galbraith, of the kingdom of Ireland, who, and the heirs of whose body, are called in the entail of

Footnote

* 1 Shaw and Dunlop, No. 261.

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James Galbraith appealed.Appellant —The appellant's title as an heir substitute having been sustained, it is incumbent on the respondent to show by satisfactory evidence that he also is a substitute, and stands prior in the substitution. If the appellant were claiming to be served heir to the same person, or in the same character, as the respondent has been served, it might perhaps be sufficient to decide the case that the evidence for the one preponderated more than the other. But the appellant does not stand in that position. He claims as an heir under the seventh substitution; and it is incumbent on the respondent to prove, by legal and satisfactory evidence, that he is entitled to the character of a prior substitute. But the evidence was of the most objectionable, illegal, and false nature; and the documents produced in the Court below showed that two persons bearing the same description were confounded together, and that the respondent is descended from the wrong man. To affirm the present judgment would be to overturn the law of Scotland.Respondent .—The service of the respondent was opposed by a party claiming as an heir substitute, and therefore it did not pass in absence. It consequently lies on the appellant to show that the service was unwarranted; but in this he has entirely failed. In questions of this nature presumptive evidence is all that is requisite; and indeed if the strict rules of the law of evidence were enforced, it would in many cases be scarcely possible to carry through a service.Lord Wynford .— My Lords, your Lordships have been pressed with great earnestness to take care how you overturn the law of Scotland. I believe I am as anxious as any man in this House can be, never to trench upon the law of Scotland. If ever I should find that the law is at variance with justice, I should still think it my duty to act according to that law, leaving it to your Lordships in

Footnote

* 4 Shaw and Dunlop, No. 442.

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A person of the name of Galbraith, in the year 1705, now considerably more than 100 years ago, made a deed of entail in the following terms:—
“On me, James Galbraith, and the heirs to be procreate of my own body; which failing, to John Galbraith (who is the first substitute), eldest lawful son to umquhill George Galbraith, merchant, burgess of Edinburgh, my cousin german, and the heirs male lawfully to be procreate of his body; which failing, to James Galbraith, second lawful son to the said umquhill George Galbraith, and the heirs male lawfully to be procreate of his body; which failing, to major Hugh Galbraith in the kingdom of Ireland,”
(the entailer does not say, “of the kingdom of Ireland,” but “in the kingdom of Ireland,”) “son of the deceased Andrew Galbraith, my father's brother consanguinean.” The Respondent claims this estate as the heir of Major Hugh Galbraith, and he must prove by credible evidence, not only that he is the eldest male descendant of Hugh Galbraith, but that this Hugh Galbraith was son to Andrew Galbraith, the entailer's father's brother consanguine. I beg leave, however, to state to your Lordships that these facts are not required, nor are any facts in any Court of Judicature required to be proved by direct positive evidence. These facts may be proved by presumptive evidence, and indeed most of the facts upon which Courts of Justice act, not only in civil but in criminal cases, even in those which affect the lives of individuals, are established by presumptive evidence. Presumptive evidence means this:— where one or more facts are proved, the existence of which makes the existence of the facts to be presumed, according to our ordinary experience, highly probable. We presume the existence of what is probable if there be no counter evidence to prove that it could not have occurred. In criminal cases, it being proved by positive evidence that a crime has been committed, Courts are constantly satisfied with highly probable proof that the person accused committed that crime. In the present case we can act with more satisfaction to ourselves on presumptive evidence. An estate belongs to some person. There is no positive evidence who the person is to whom it belongs. In such a case it must be awarded to the person who has the greatest probability of being the true owner. You have positive proof that there was a Major Galbraith in the kingdom of Ireland, namely, by the evidence of the settler, who so says in the deed of entail; but you have no positive evidence that the person under whom these parties claim was descended from

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The House of Lords ordered and adjudged, That the interlocutor complained of be affirmed.Appellant's Authorities .— 3 Stair, 3, 44; Spottiswoode, 494; Mercer, Feb. 24, 1665 (14,424); Speeches in Douglas' Cause, 183; Polmood, July 8, 1812 (F.C.)Solicitors: J. Duthie— Spottiswoode and Robertson,—Solicitors.