Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 RES JUDICATA.
Subject_3 If a Court determines upon one ground, when several are offered, and signifies it is therefore unnecessary to examine the rest, a reversal of their judgment is a Res Judicata of the general issue between the parties.

William Douglas of Bridgeton
v.
Alexander Elphinston of Glack

Date: 23 November 1768

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[Faculty Collection, IV. 132; Dictionary, 8649.]

Monboddo. I am sorry that the form of our proceedings should have occasioned this difficulty. If the interlocutor had been general, or if every objection had been determined, this question would not have occurred. The words of our judgment determine one point, and find it unnecessary to determine the others. I wish for either a general determination, or for a special judgment in every point. I think we ought to proceed. The decreet was extracted, and the appeal was lodged before the expiry of the reclaiming days. What the House of Peers determined is only one point: It could not in justice determine, nor can it be supposed to have determined, more.

Barjarg. This is a sort of conditional decree. We found upon one point: if our judgment is reversed, the other part of our interlocutor must be reversed also. An extract, upon an interlocutor of this kind, cannot take the cause out of Court totally.

President. My difficulty is here: The interlocutor is final, finding that the freeholders did wrong, &c. The House of Peers decrees the contrary; How can we proceed farther? The fault was in the petitioners: they did not manage their cause right. At the reversal, or even after the reversal, it was competent for them to have applied, and to have got the cause remitted to this Court. This would have been granted of course.

Kaimes. If one of the parties, by appealing, can cut out the other party, he may cut himself out, but he can do no more. I do not put this case upon the inconveniency or hurt arising; because the party hurt might have procured a reservation which would have secured him, and yet neglected it.

Pitfour. Most appeals are from particular interlocutors. When there is no decerniture, there is no occasion for a remit. The cause comes back of course; but the case is different when the Court closes the chequer. The decree of this Court is, that Mr Elphinstone shall be expunged. The House of Peers says, that he shall stand upon the roll: How can we dispute this? Here there is no inconveniency but what is owing to the neglect of parties: they had a remedy by seeking a remit, but they did not use it.

Gardenston. I cannot see either common sense or common justice for holding a decree of the House of Lords to be final, in points not tried. Suppose that there were a reduction upon three grounds;—that the Court of Session determined one point, and reduced the deed, and, at the same time, found it unnecessary to go farther, the deed stands reduced, as long as the decree stands which reduces it; but, if the decree is altered, it becomes necessary to try the other points. This question may be of little moment in a case of a vote; but it is of moment as affording a precedent in the greatest causes.

Auchinleck. The intention of the Court was solely to determine one point, but still my difficulty remains. Suppose, in a case of property, there is a reduction on various grounds; one reason of reduction is sustained, and there is no appeal:—May a man, after extracted decreet, come to us and desire our judgment upon the points undecided? We are functi, and have no power over that particular libel. Here is the same thing. The House of Peers did not mean to determine more than we did. But the words stand against our proceeding further, and the parties ought to have taken care of this, and represented that, if there was not a reservation, the cause would be out of Court by the forms of the law of Scotland, in virtue of the extracted decreet.

Kennet. It was impossible for the Court, on former occasions, to determine every point in every election cause. This would have multiplied causes beyond measure. I am not moved by the extracted decreet; that was not voluntary; the petitioner was bound to extract in order to support the judgment. But how can we find that the party ought to be off the roll, when the House of Peers says he shall be on the roll?

On the 10th March 1768, the Lords, having heard the judgment of the House of Peers, refused the petition.

On the 23d November 1768, they adhered.

Act. H. Dundas. Alt. D. Rae.

Diss. Kaimes, Gardenston, Barjarg, Hailes, Monboddo.