Garland v Stewart

JurisdictionScotland
Judgment Date12 November 1841
Docket NumberNo. 1
Date12 November 1841
Year1841
CourtCourt of Session (Inner House - First Division)
1ST DIVISION.

Lord Ivory. B.

No. 1
Garland
and
Stewart

Proof—Presumption of Death.

Heritable and Moveable—Statute.

ANDREW GARLAND, tobacconist in Dundee, died in 1801, leaving a testamentary disposition to his two sons, Andrew and Joseph, equally between them, of a tenement in the Nethergate Street of Dundee. Joseph had been bred a seaman, and in 1802, was employed on board a vessel sailing to the west coast of England. Early in 1803, when he was about nineteen years of age, from apprehension of being impressed,

he left his vessel at Beaumaris, and travelling overland to Liverpool, embarked on board a ship bound for Pictou in America. He was understood to have left that vessel at Pictou, and to have gone to Portsmouth, in the state of New Hampshire, where he hired himself on board of an American vessel, trading with the West Indies. After 1804, no tidings were ever received respecting him by his relations in this country.

By a local act passed in 1811, the magistrates of Dundee were empowered to treat for the purchase of certain tenements in the Nethergate Street, and, among others, for that which had belonged to the late Andrew Garland. In case of the refusal of the proprietors to treat, the subjects were to be valued by a jury, and the price adjudged by the Sheriff to the person having right thereto. The 7th section of the statute enacted that the price of such subjects as ‘were held under entail, or subject to liferent annuities or other incumbrances, or belonging to any incorporation, married woman, minor, lunatic, idiot, or other person under legal disability or incapacity, in case the same amounts to £200 or upwards, shall be under the authority and direction of the Court of Session, and shall without delay be paid into the Bank of Scotland, or Royal Bank of Scotland, upon the highest interest that can be got, in order that it may be applied, with the approbation and by the authority of the said Court, in the purchase of the land-tax, or in the discharge of any debt or incumbrance affecting the said houses or other subjects, or affecting other lands or houses belonging to the same persons, and settled to the same or like uses, and under the like conditions and limitations; and when such money cannot be applied to these or to the like purposes, then the same shall be laid out in the purchase or on the security of other houses and subjects of the like nature; and the rights and the titles thereof shall be devised to the same person or persons, or for their benefit, to the same uses and purposes, and under the same provisions, conditions, and limitations as the houses, and other subjects, taken and used for the purposes of this act, were devised and settled, or such of them as shall be then existing, and capable of taking effect.’ The 10th section enacted that if the person to whom the price was awarded could not be found, or if the proprietor of the subjects were not known, the money should be paid into the Bunk of Scotland, or Royal Bank, ‘subject to the order, control, and disposition of the Court of Session; which said Court, on the application of any person or persons making claim to such sum or sums of...

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