2 Dunl 31
| Jurisdiction | Scotland |
| Judgment Date | 15 November 1839 |
| Date | 15 November 1839 |
| Year | 1839 |
| Docket Number | No. 10 |
| Court | Court of Session (Inner House - Second Division) |
Lord Cuninghame. T.
Foreign—Alien—Succession—Stat. 4 Geo. II. c. 21, and 13 Geo. III. c. 21.—
BY the statute 4 Geo. III. c. 21, it was enacted, ‘that all children born out of the liegeance of the crown of England, or of Great Britain, or which shall afterwards be born out of such liegeance, whose fathers are or shall be natural-born subjects of Great Britain at the time of the birth of such children respectively, shall and may be adjudged and taken to be, and all such children are hereby declared to be, natural-born subjects of the crown of Great Britain, to all intents, constructions, and purposes whatsoever.’ By 13 Geo. III. c. 21, it was farther provided, ‘that all persons born, or who shall be hereafter born, out of the liegeance of the crown of Great Britain, whose fathers were, or may be, by a statute made in the fourth year of King George III., &c., entitled to all the privileges of natural-born subjects of Great Britain, shall and may be adjudged and taken to be, and are hereby declared and enacted to be, natural-born subjects of the crown of Great Britain, to all intents, constructions, and purposes whatsoever, as if he and they had been, and were, born in this kingdom.’
By the treaty of independence in 1783, his Britannic Majesty acknowledged the United States of New Hampshire, &c., including Pennsylvania, to be “free, sovereign, and independent States,” treated with them as such, and “for himself, his heirs and successors, relinquished all claims to the government, proprietory or territorial rights of the same, and every part thereof.” It was therein also provided that no one should, on account of the war, “suffer any future loss or damage, either in his person, liberty, or property.” By the treaty between Great Britain and the United States, concluded in 1795, it was provided, ‘that British subjects who now hold lands in the territory of the United States, and American citizens who now hold lands in the dominions of his Majesty, shall continue to hold them according to the nature and tenure of their respective estates and titles therein, and may grant, sell, or devise the same to whom they please, in like manner as if they were natives; and that neither they nor their heirs or assigns shall, so far as respects the said lands and the legal remedies incident thereto, be regarded as aliens.’ And by the statute 57 Geo. III. c. 97, ratifying this treaty, it was enacted, “that all lands, &c., in Great Britain or its dependencies, which, on 28th October 1795, were held by American citizens, shall be held and enjoyed, granted, sold, and devised, according to the stipulations contained in the said article, any law or custom to the contrary notwithstanding; provided always that nothing herein contained shall extend, or be construed to extend, to give any right, title, or privilege, to any person not being a natural-born subject of this realm, which such person would not have been entitled to if this Act had not been made, other than such rights, titles, and privileges, as shall be necessary for the true and faithful performance of the stipulations in the said articles contained, according to the true intent and meaning thereof, or to give to any person not being a natural-born subject of this realm, or a citizen of the said United States, any right, title, or privilege, to which such person would not have been entitled if this Act had not been made.”
In 1754, John Dundas of Manor, in Perthshire, executed an entail of that estate in favour of himself in liferent, and his eldest son in fee, whom failing, of other substitutes, including his fourth son, James Dundas, grandfather of the defender. James Dundas, who was born in Scotland in 1734, went in 1754 to America, where he fixed his residence at Philadelphia, and married. His son, John Dundas, was born there in 1759, and was 24 years of age at the time of the treaty of independence in 1783. Subsequent to that treaty, James and John Dundas adhered to America as their country, and became citizens of the United States, enjoying the privileges of that status, and continuing to reside in Philadelphia. John having married, became the father of the defender James Dundas, in 1787, who continued thereafter to be a citizen of the States.
In 1829, the prior substitutes in the entail of Manor having all failed, James Dundas being still a domiciled American citizen, his father and grandfather being dead, had himself served and retoured as nearest and lawful heir of tailzie and provision to the last heir in the lands of Manor, and thereafter made up titles, and entered into possession of the estate.
At this time the heir of entail next in succession after James Dundas, was Colonel Thomas Dundas, then in the East India Company's service. Being advised that James Dundas was disqualified, as an alien, from inheriting land in Scotland, Colonel Dundas raised action against James, to have his service as heir of entail reduced, on the grounds, 1st, That the defender, and the whole other descendants of his late grandfather, were aliens, and incapable by law of succeeding to, or holding lands and heritages in Scotland, in respect of their being citizens of the United States, and owing no allegiance to the Sovereign of Great Britain; and, 2d, That, being thus aliens, neither he, nor any of them, was entitled to be served heir in the lands in question, but the succession thereto had now devolved upon the pursuer, as nearest lawful heir of tailzie and provision capable of succeeding; and, further, to have it declared that the pursuer was entitled to succeed, as nearest and lawful heir of the person who had died last vest and seised in the estate; and to have the defender ordained to make payment to the pursuer of a certain sum as the amount of rents intromitted with.
In defence against the action, it was pleaded,—
-
1. That James Dundas, though born in America, and himself an alien, was entitled to take up the inheritance, in respect of the provisions contained in the Acts 4 Geo. II. c. 21, and 13 Geo. III. c. 21, his father having been born within the British possessions in America prior to the American war, and his grandfather having been a native of Scotland.
-
2. That he was entitled, under the treaty of 1794, and the relative statute of 1797, to take up the estate of Manor, to which he had right, at the date of the treaty, as a substitute-heir of entail, and the succession to which had now opened to him by the death of the last heir.
-
3. That, even although James Duhdas were to be held incapable of succeeding, it did not follow that his descendants, or the descendants of his grandfather, should be cut off from the succession, or that any decree cutting off their right as heirs of entail of Manor could be pronounced; as the children of an alien, who may be born in Great Britain, are by law entitled to succeed to lands which belonged to their ancestors, notwithstanding...
To continue reading
Request your trial
-
Midland Railway (Additional Powers) Act 1873
...in the mineral class of the Clearing House classification, except coal, coke, and lime - - - - - - 3d. On coal, coke, and lime - - - -2d. 31 For every parcel in passenger trains - - - lrf. 42 [36 & 37 Vict.]' Midland Railway {Additional [Ch. CCX.] Powers) Act, 1873. Is. 6rf. per truck load ......