Scottish Court of Session Decisions

Subject_1 PART I.

PERSONAL AND TRANSMISSIBLE.

Alexander Calder Pursuer,
v.
The Relict and Children of Kenneth Mackenzie, Defenders

Date: 23 July 1776
Case No. No. 2.

Whether an action ex delicto be transmissible against the heirs? Effect of litiscontestation. Act before answer. See No. 37. p. 10363.

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The deceased Kenneth Mackenzie having been attacked and wounded in the dark, and a quarrel having subsisted between him and the pursuer, suspicions were entertained of the pursuer having been himself the actor in, or privy to this business. He was accordingly examined, first before the Sheriff of the county, and afterward at Edinburgh, before the Lord JusticeClerk, but no sufficient proof appearing against him, no further steps were taken.

The pursuer afterward brought an action of oppression and damages against Kenneth Mackenzie, who having died before any proof bad been taken therein, a transference of the action was raised against his widow and children; who having insisted that the action being founded on a supposed delict, was not transferable against the heirs of the deceased, the Lord Ordinary, after some procedure, “In respect that litiscontestation was made with the defunct by an extracted act and commission for proving, adhered to his former interlocutor transferring in statu quo.”

Pleaded for the defenders: No point is more clear, than that penal actions arising ex delicto do not pass against heirs. Nay, even actions ex delicto, though rei persecutoriæ only, do not transmit; 19th January 1711, Lady Ormiston contra Hamilton, No. 26. p. 10343. Besides, the present action is not rei persecutoria; for although it bear a conclusion for damages, these are in reality no more than a solatium claimed on the footing of an injury, where a pecuniary loss cannot be said to have been incurred, or to be capable of being estimated by any rule whatever. Such damages, therefore, cannot be demanded from heirs, any more than a fine incurred in consequence of a delict, the ground of action dying with the transgressor, and becoming extinct.

With respect to the ratio decidendi of the Lord Ordinary's interlocutor, it was indeed a principle in the Roman law, that, Si lis contestata fuerit cum defuncto, a penal action should transmit against heirs. This, however, proceeded from litiscontestation, among the Romans, being a species of contract, whereby the nature of an obligation was changed, and what was originally penal, became civil and consensual, so as to be, from the, date of the litiscontestation, an obligation quasi ex contractu; and accordingly, litiscontestation in that law was performed by uttering a certain form of words which produced the quasi contract.

But there is nothing analogous to this in our law. We have adopted the term litiscontestation, it is true, and we apply it to an act for proving. Yet the effect of this cannot be compared to the effect of litiscontestation, and more particularly, it can have no such effect when the act is only an act before answer. When a special relevancy is determined by an interlocutor before going to proof, this may be considered as a decree on the point of law; and there may be some ground in such a case for considering an obligation to be fixed down upon the defunct, so as to transmit against his representatives. In an act before answer nothing is determined at all; no obligation is created that did not before exist; every defence competent in law may still be proponed; the defender may be assoilzied on objections made to the relevancy after the proof is taken, and even though the libel should be completely proved. The extracting of such an act, therefore, can have no greater effect than any common step of process; and the action cannot be rendered transmissible thereby, nor until a decree be pronounced.

Answered for the pursuers: The action is of a mixed nature, and contains two different conclusions. It is evidently rei persecutoria, so far as it demands reparation of the patrimonial damage actually sustained; and it is penal so far as it concludes for damages in solatium, on account of the injury done to the pursuer, and for such other censure as the Court should think fit to inflict. The first part of the action is transmissible, though there had been no litiscontestation with the defunct. The second is transmissible on account of the litiscontestation.

It is uniformly held by all our lawyers, that an actio rei persecutoria, though arising ex delicto, is transmissible against heirs even without litiscontestation; and although the rule in the civil law is, that the action could only be sustained against the heir in quantum ex ea re pervenit, yet this limitation has justly been departed from in our practice; Bankt. Vol. 2. p. 608, 609.; Ersk. B. 4. Tit. 1. § 14., 22d January 1751, Hepburn contra Maclauchlan; No. 33. p. 10357; and the case of Lady Ormiston, quoted by the defenders, appears to have gone upon particular circumstances, and to have been ho decision upon the point of law.

As to the effect of litiscontestation, though we have not the form of the Roman law in that matter, yet we have the substance of it, and give it precisely the same effect, at least in the question of transmission. Accordingly, conclusions of a penal nature, such as damages in solatium, or violent profits, transmit against the heir after litiscontestation with the predecessor; Ersk. B. 4. Tit. 1. § 70. February 7. 1712, Stewart, No. 28. p. 10351; 28th November 1682, Paip. No. 23. p. 10342; 5th June 1717, Forbes, No. 29. p. 10353; 17th July 1752, Montgomery contra The representatives of Walker, No. 34. p. 10360. When parties have joined issue in any action of a private nature, concluding for civil consequences, though penal, each party obtains a jus quæsitum in the consequences of the action, which cannot be extinguished by the death of either. The case is different as to public prosecutions, where the conclusion is for punishment ad vindictam publicam. A criminal must be punished in his own person, and his heir cannot be substituted in his place; so it was found in a late case, the Procurator Fiscal of Dean of Guild court of Edinburgh contra Paxton. And the same must hold as to the conclusion of censure in the pursuer's action. But the other conclusions appear to be undoubtedly competent against the defenders.

The Court pronounced an interlocutor, adhering to that of the Lord Ordinary.

Lord Ordinary, Stonefield. Act. Ilay Campbell. Alt. Crosbie.