(1844) 3 Bell 34
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1844.
Subject_Res Judicata. —
A judgment upon a question raised, but not material or necessary for the decision of the issue between the parties, will not form res judicata.
Subject_Res Judicata. — Teinds. — Locality. — Semble. —
That a judgment in one process of locality upon a point in issue between the parties will form res judicata in a subsequent locality.
In the year 1650 the minister of Haddington obtained an augmentation of his stipend. The stipend, as so augmented, was levied from time to time by the successive incumbents of the parish, without its having been localled on the heritors.
Betwixt the year 1650 and the year 1710 the parish of Gladsmuir was erected and part of the lands of the parish of Haddington were disjoined from that parish and annexed to Gladsmuir.
In the year 1710 the then incumbent of the parish of Haddington, experiencing difficulty in obtaining payment of his stipend, brought a process for having it localled, and for having the stipend withdrawn by the annexation of part of the lands to Gladsmuir localled upon the other teinds of the parish of Haddington. In that action appearance was made for the proprietors of Bearford, and Easter and Wester Monkrigg, the predecessors of the respondents.
On the 8th February, 1710, the minister obtained a decree of locality, which set forth that certain specified heritors objected to the scheme of locality that they had heritable rights to their teinds, and that they could not, therefore, be obliged to pay beyond what they had been in use to pay since the decree of
The decree further set forth that Hepburn had presented a petition against an interlocutor, ordaining him to continue the same payment which his predecessors had been in use to make, and that “thereafter upon the 24th day of November, 1708 years, the said action and cause being again called, and parties compearing as above, the purs.'s prors. craved that the Lord Fountainhall's report might be read, and that the Lords would determine the point y eby remitted to them, viz., whether that part of the stipend as yet unallocat, should be in the first place allocat upon the teinds of other men's lands, which was in the hands of titulars or their tacksmen, or upon the teinds of the paroch in generall. Whereupon the pror. for the toun of Haddingtoun, Alderston, Sir Robert Sinclair, and others alleadged, that the stipend ought, in the first place, to be allocat upon the free teind of the paroch before any part of the teinds belonging heretably to the heretors of the lands could be burdened; and as that was most agreeable to law, soe it was to their Lordships' daily practice in the like cases. Whereupon the pror. for the Lord Blantyre, &c., alleadged that the stipend as yett unallocate ought to be allocat upon the teinds of the haill paroch equally, notwithstanding of the rights produced for thir reasons,— first, no teind could be exeemed from payment of a minister's stipend, nor could any right exeem the land of a paroch till the minister had been sufficiently provided, except such lands as were fewed out by kirkmen, cum decimis inclusis quæ nunquam a stipite antea separatæ fuerunt, which could not be pretended in that case; on the contrair, the rights produced were not heritable rights, but only flows from a tacksman as was evident from Sir
In the year 1822, the first and second ministers of Haddington, which is a collegiate charge, respectively brought actions of augmentation, modification, and locality. In these actions decrees of augmentation were given, and a scheme of locality was ordered to be prepared. In the course of framing the scheme, the common agent gave effect to a claim of exemption set up by the respondents upon a clause “ cum decimis inclusis” contained
The Lord Ordinary ( Cunninghame) on the 16th January, 1838, sustained the claim of exemption by an interlocutor in these terms:—
“The Lord Ordinary having considered the revised objections and answers, and whole process, and having particularly examined the proceedings in the process of locality relative to this parish, which terminated in a decreet of locality, pronounced on the 8th February, 1710, excerpts from which have been lately produced: Finds, that the said former process of locality commenced in the year 1707, and that appearance was made therein for the predecesors of the whole parties, both objectors and respondents in whose behalf pleas are stated in the present process: Finds, that the record of the former process affords clear evidence that the judgment pronounced in the said process, exempting the lands of the present respondents from allocation, as held cum decimis inclusis, were neither pronounced in absence nor per incuriam, but on a deliberate discussion and consideration of the law as then understood: Finds that the objectors, as representing or standing in the place of heritors who were parties to the said former locality, cannot be allowed, more especially after the judgments in the said process have been acquiesced in and acted on for above 120 years, to call in question the said judgments, or to maintain that the respondents' titles are not sufficient to exempt them from stipend, on the ground that a different view of the law applicable to such titles has been taken by the Court in cases of comparatively recent date, occurring in other parishes; Therefore, of new repels the objections stated for Lord Blantyre and others, finds the respondents
entitled to expences, and remits the account thereof, when lodged, to the auditor, to tax and report.”
“ Note.—The proceedings in the former locality, when minutely examined, appear sufficient to obviate the objections in the present case, and demonstrate that these objections are not tenable either in fact or in law. Indeed, it is thought that, if the present objections were sustained, the decision would be not a little dangerous in point of precedent.
So far as the Lord Ordinary can trace the parties, every property for the owner of which appearance is made in the present process, was represented in the locality of 1707-10, and their attention was particularly called to the very question now proposed to be revived. Here the excerpts from the old record (printed since the case was last before the Court in May, 1836) deserve to be particularly examined.
These excerpts show that the whole titles of the respondents' predecessors, from 1567 to 1686, were produced. It is also established that, on 17th February, 1708, Lord Fountainhall pronounced an interlocutor as to the lands of Hepburn of Wester Monkrigg (predecessor of Captain Keith), finding, that the said lands, in respect of the writs produced, and that they were never in use of payment, could not be liable in any part of the stipend.”
“That judgment was not brought under review, for a reason which is perfectly obvious from the record. The excerpts, after setting forth the preceding interlocutor as to Wester Monkrigg, proceeded to narrate the judgment of the Lord Ordinary as to the lands of Bearford and Easter Monkrigg, then belonging to Robert Hepburn (the predecessor of Lord Wemyss). His pleas are first set forth, and then the Lord Ordinary (Fountainhall), “in respect of Bearford's use of payment, ordained him to continue to pay the same quantity of stipend formerly paid by him and his predecessor; and, in respect of the writs produced,
It is on reference to these proceedings that the Lord Ordinary is of opinion here, that there is no room for holding that the decree in favour of the respondents' predecessors, was a decree in absence. It was manifestly a decree in foro contentiosissimo, as to Bearford; and latterly the judgment of the Lord Ordinary, as to Monkrigg, was purposely allowed to become final, because the opinion of the Court on Bearford's title, in the same parish, was decisive of Monkrigg's case.
This brings the question here to the point raised by the objectors, who argue that no judgment, in one locality, can ever form res judicata, as to the augmentation to be provided for in a subsequent locality; or to any effect beyond the allocation
The Lord Ordinary thinks that this doctrine would be alike oppressive to heritors, and contrary to all the authority and legal analogies applicable to the question. After the Union, the Commission of Teinds had all the permanency and jurisdiction of a court of law in teind matters; and, if parties once join issue there, and have the legal construction and effect of their titles, as rendering their estates subject to, or exempt from, teinds, determined in foro in a locality, it would be both unnecessary and vexatious to allow either these parties themselves, or their heirs and successors, to renew the very same argument as to the same estate in any future process, whether
It may be added, that the plea of res judicata, founded on a judgment in a previous locality, appears to have been one of the pleas sustained in the reduction, Lawson v. Lindsay, Shaw's Teind Cases, 3rd July, 1822. There, no doubt the title of exemption libelled on appears to have been such as would have been sufficient to exempt Lawson's lands, even according to the law of decimæ inclusæ, as latterly understood. But here it deserves particular notice, that Bearford's right to exemption, in 1708, was pronounced, not simply in a process of locality, but in a reduction which he raised expressly to try his right; so that, if the judgment in such a process was not sufficient finally to ascertain his right, it is not very easy to see how it could ever be determined.”
The Court (1st division) on the 22nd of May, 1838, adhered by a majority to the Lord Ordinary's interlocutor.
The appeal was against these interlocutors.
Mr. Kelly and Mr. J. G. Bell, for the Appellants.—In every new process of augmentation, the localling of the augmentation as between the heritors is according to the existing titles, which must be produced, without reference to any prior augmentation or locality. Here no titles are produced, but the respondents rest their claim of exemption from liability upon the decree of 1710, which was pronounced in a distinct and independent process. The questions between the parties therefore are,—1st, whether in any case a decree pronounced in one process of locality can form res judicata in another process in regard to the same parish; and 2nd, assuming this question to be decided in the affirmative, then whether in this case the decree of 1710 can form res judicata.
I. The Commission of Teinds as originally constituted was not intended to determine any question of legal right, but merely to perform the ministerial duty of seeing that proper provision was made out of the teinds of each parish for the maintenance of its minister. Accordingly the Commissioners were selected, not from the legal profession, but from each of the different estates of the realm. When in later times the powers of the Commission were transferred to the Judges of the Court of Session, no alteration was made in the nature of its jurisdiction; accordingly all the machinery by which the powers of the Commission were carried out were kept separate and distinct from those by which the Court of Session carried out its ordinary jurisdiction; no doubt the Commissioners in localling stipends have occasionally determined incidental questions of legal right, but they have done so only so far as was necessary to explicate their admitted jurisdiction. This is an exercise of jurisdiction competent to every Court, Ersk. i., 28, but it will not confer the power to adjudicate upon such questions when original and primary, and it was never so considered in regard to the Commission. Monymusk v. Pitfoddels, Mor. 15644 and 15718.
Further, res judicata can be founded only upon pleadings properly framed for trying the particular question; but the process of locality either in the frame of its summons or in the form of its procedure, is no way adapted for the trial of questions of right as between the heritors. The summons is at the instance of the minister against the heritors, not between the heritors as pursuers and defenders; it is confined to the particular augmentation sought to be localled, and does not give any intimation or even suggestion to the body of heritors of any claim or right to be set up by any particular heritor. And even if the heritors should in the subsequent procedure obtain intimation of the claim or right set up, it may in that particular locality be as to them altogether an abstract question in which they have no interest, although in a subsequent locality of a further augmentation
II. The decree of 1710 cannot form res judicata. 1. Because the Court had no jurisdiction over the question now mooted, even if it had been properly raised; their jurisdiction was confined to ascertaining whether a proper defence had been set up to the particular augmentation then in hand, and could not extend to any future augmentation. 2. Because the question of exemption, though raised by the respondents' predecessors, was not decided in foro contentioso. Two claims of exemption were set up, 1st, from the payments which had been in use to be made subsequent to 1650; and 2nd, from liability for any further portion of the augmentation. The first only of these questions was contested, and it was decided against the party. With regard to the second, the titles produced in support of it, whether sufficient to sustain an exemption from ultimate liability, were unquestionably sufficient to sustain the claim of exemption from immediate liability. They showed an undoubted heritable right to the teinds, and as there were free teinds in the hands of the titular sufficient to pay the augmentation, which were liable primarily to those in the hands of the heritor, the other heritors had no interest to contest the question of ultimate liability after the free teinds should have been exhausted; and the decree by its terms shows that they did not contest that question. In
Yes, as to the then existing augmentation, which was all that was before the Court; beyond that the judgment was extrajudicial.
All the heritors may not on each occasion be before the Court, but the party may obtain a general and permanent exemption by process of declarator, to which all the heritors must be summoned.
We are not aware that there is; but in no other case than the present has a judgment in a prior locality been held to be res judicata. All the authorities negative such a plea, and in some of them, after the point had been deliberately raised and argued,— Auchterlonie v. Carmylie, 15 F. C. 659; Dickson v. Biggar, Shaw's Teind Cases, p. 174; Smith v. Hunter, Ibid., p. 48; College of Glasgow v. Menteith, 17 F. C., 372; Anstruther v. Lockhart, Sh. T. C., p. 133; Leslie v. Heritors of Rayne, Mor. vo. ‘Stipend,’ App. No. 2; Wemyss v. Heritors of Newburn, Mor. Teind, App. No. 7; Hay, 15 F. C. 564; Hamilton v. Paterson, 1 D. and B., 453; Maxwell v. Jardine, Sh. T. C., p. 143. In some of these cases, on reference to the pleadings, it will be found that the Court, after having in one locality determined the claim upon the titles, has in a subsequent locality again examined the titles, disregarding their previous judgment as having already settled the question; and in the case of Leslie v. Rayne, the point of res judicata was expressly taken and repelled.
Moreover, at the period of the decree of 1710, and for a long time subsequent, it was a generally received opinion that a second augmentation could not be granted by the Commission, so that the Commissioners could have had in view to decide only what should affect the particular augmentation before them, and the heritors being by the decision freed from liability in regard to it, could not contemplate the necessity of contesting claims of exemption with a view to a subsequent augmentation, which in the then existing notion could never arise.
Lord Advocate and Mr. Anderson, for Respondents.— I. A claim for general exemption from payment of stipend is never tried in any other way than in a process of locality. Though the Commission in its original constitution, not being then composed of lawyers, would not try such questions even when occurring incidentally in a process of locality, as is shown by the case of Monymusk relied on by the appellant, which in this respect proves too much for him; yet ever since the powers of the Commission were transferred to the Court of Session, questions of exemption have constantly been tried in processes of locality. There is nothing in the constitution of the Court as it now exists, or in the form of the particular process, to prevent such questions being properly entertained and determined. All the heritors are summoned for their interest, and they have an obvious interest in any condition of the teinds to support their own claims for exemption or otherwise, and to dispute those set up by others.
II. The claim of exemption was expressly set up, and was contested by the other heritors and for an obvious reason; although there were free teinds, it had not, at the date of the interlocutor sustaining the claim, been ascertained whether these free teinds would be sufficient to defray the augmentation, and on the supposition that they would prove insufficient, the heritors had a clear interest to maintain the liability of the claimant to
It might not, for there had to be an allocation of the stipend which had been carried away by the minister of the newly-erected parish of Gladsmuir, the effect of which might be to draw from the claimant a greater payment than he had been in use to make. Not only does the decree in terms dispose of the claim upon the shape of the title, but the case of Dempster v. Arnott, 2 Connell, 380, shows that the judgment was considered by the profession soon afterwards as a leading authority on the effect of such a title.
No authority has been produced to show that a decree in one locality will not form res judicata in another; such a decision is not given in any of the cases relied on; in some of them the question did not even arise, and in others it arises only inferentially, from a comparison of the pleadings with the decrees. But in the present case the decree was not in a locality alone, but in a reduction conjoined with it; it is difficult to conceive therefore in what case res judicata can receive effect if not in such a one.
The effect being prospective, the parties had an interest and could have appealed.
No, it would not; but nevertheless it did decide the question after it had been fully raised.
The parties having these teinds; but until it was known that they would acquiesce, the heritors, having heritable rights, had an interest to dispute the claim of exemption.
If the judgment had been against the claim, the party would have had a clear right to appeal, and at the time it was pronounced the other heritors had a clear right to contest it, though in the result it turned out to be otherwise.
I am of opinion, therefore, that this cannot be considered res judicata, and that the judgment must be reversed.
It has been said that there could have been no appeal from it. Nor could there have been; for there could be no appeal from an immaterial judgment at the conclusion of the cause, for the party prosecuting must have an interest, and no person could be affected or injured by an immaterial judgment. But I doubt whether, at that intermediate period of the cause, in 1710, the appeal could have been prosecuted to any effectual purpose, because
It is said at the bar that we are not to take into consideration circumstances that afterwards occurred. That is not the point. There was no change of circumstances, there was no new facts; the only circumstance that afterwards occurred was, that the case went on to its natural termination, and that then the judgment, on this point, turned out to be perfectly immaterial. That being the case, it becomes unnecessary to dispose of the second point, which cannot be said properly to arise in this case. In fact, we are not called upon to do so, but if your Lordships look to the interlocutor of the Court of Session, it appears that the learned Judges had not taken that view of it at all.
Now the whole difficulty has arisen from the Court deciding by anticipation a point which, if the cause had taken another course, would never have been raised at all. If before deciding whether it was necessary to order the sums payable out of these lands, they had taken the course of deciding that these unappropriated teinds were the proper fund to make good the Minister's loss, it would never have been necessary to consider what lands were liable to pay the additional sum, because no additional sum would have had to be paid at all. The interlocutor declares that they were not liable to pay beyond the sums then fixed, anticipating a case which never arose. A decision was expressed
Lord Advocate.—Would your Lordships say that this judgment should apply to the case of the parties who have not appealed?
Mr. Kelly.—That is not before the Court.
Interlocutors reversed as to plea of res judicata, and quoad ultra remitted.
Ordered and Adjudged,—That the interlocutors of the Lord Ordinary and the interlocutor of the Lords of Session of the First Division complained of in the said appeal, so far as they or any of them have the effect of finding that the decreet of locality pronounced on the 8th of February, 1710, or any of the judgments or interlocutors pronounced in the process of locality commenced in the year 1707, constituted res judicata as against the appellant in this appeal, and in so far as they find the appellant liable in expences, be and the same are hereby reversed. And it is further ordered, that the said respondents do pay, or cause to be paid to the said appellant the costs of the proceedings incurred by him in the said cause in the Court of Session, so far as relates to the discussion of the said plea of res judicata. And it is also further ordered, that quoad ultra the cause be remitted to the said first division of the Court of Session in Scotland, to do therein as shall be just.
Solicitors: Richardson and Connell— Spottiswoode and Robertson, Agents.