Scottish Court of Session Decisions

The late James Thomson, feuar, in Aberlady, who died in 1804, had a son, James Thomson, mason, in Edinburgh, and a daughter, Helen Thomson, residing at Aberlady. He left a house and two acres of ground, and died without a settlement. In 1808 James Thomson raised an action of reduction-improbation for setting aside a disposition of that heritable property which Helen Thomson held, and which, ex facie, bore to be signed by her brother. He alleged that the signature to the deed was forged. The summons was executed personally against Helen Thomson, who appeared and took a day for satisfying the production, and produced an extract of the recorded deed to satisfy it. According to the forms then in observance, great avizandum was made with the writs produced, and the reasons of reduction-improbation, after which Helen Thomson presented the petition to the Inner House for warrant to discuss the reasons of reduction. The cause was accordingly remitted to the Lord Ordinary, who, on June 8, 1808, “having heard parties procurators,” ordained the original disposition to be produced. It was produced, and Helen Thomson, by her counsel, then craved and obtained an order on the pursuer “to give in a special condescendence of his reasons of reduction-improbation.” Afterwards on the representation of James Thomson, in May, 1809, this order was recalled and a day was assigned to Helen Thomson “to appear and abide by the verity of the deed challenged sub periculo falsi.” She appeared and abided by the deed. On June 20, 1809, an interlocutor was pronounced, ordaining James Thomson to give in a special condescendence of articles improbatory, and allowing Helen Thomson thereafter to give in a condescendence of articles approbatory. This appointment on James Thomson was twice renewed, on Helen Thomson's motion, after which the articles improbatory were lodged. On January 20, 1810, the Lord Ordinary “having heard parties procurators,” allowed these to be seen, and appointed articles approbatory to be lodged by Helen Thomson. Articles were accordingly lodged for her, drawn by her counsel, and the Lord Ordinary, on February 17, 1810, made avizandum with both the approbatory and improbatory articles. On February 22, 1810, his Lordship, in respect that the articles, in both condescendences, were too loosely drawn, ordained a special condescendence by James Thomson, and answers by Helen Thomson with a view to a proof. Condescendence and answers were lodged, each paper being drawn by counsel, and on June 16,1810, counsel on both sides being present, the Lord Ordinary made avizandum with these papers. On June 20, 1810, his Lordship allowed to each party a proof, and to both a conjunct probation. Several diets of proof were held, under the commission thus granted, all of which were attended by the agents on both sides, and some of them also by Helen Thomson herself. James Thomson concluded his proof in chief on May 13, 1811, and Helen Thomson examined two witnesses, but did not conclude her proof. On May 21, 1812, after a summons of wakening had been brought by James Thomson, the Lord Ordinary of new granted warrant for letters of incident diligence at the instance of both parties, for proving, in terms of the interlocutor of June 20, 1810. Counsel on both sides were present when this warrant was granted; but no farther proof was led, within the term specified in the warrant, and on June 18, 1812, the Lord Ordinary pronounced this interlocutor:—“Act. Moncreiff—Alt. Forsyth. The Lord Ordinary appoints parties' procurators to be ready to debate upon the import of the proof adduced by the pursuer (James Thomson) and circumduces the term against the defender (Helen Thomson) for not reporting her proof.”

No report had been made of the evidence of the two witnesses who had been examined by Helen Thomson. On June 25, 1812, the order for debate was renewed, the interlocutor bearing prefixed—“Act. Moncreiff—Alt. Baird.” On July 3, 1812, a representation was presented by Helen Thomson, against the judgment of June 18, which circumduced the term against her, craving that it might be recalled, and a renewal of the diligence granted. The representation alleged that her counsel had not been present when the interlocutor of June 18 was pronounced, though marked by mistake in the partibus as being present; that she had still some other material witnesses to examine, but, from her extreme poverty had been obliged to apply for the benefit of the poors' roll; and that, when admitted to the roll, she would be enabled to go on with her proof. On July 8, 1812, the Lord Ordinary appointed the representation to be answered at the bar. On November 27, 1812, the following interlocutor was pronounced:—“Act. Moncreiff—Alt. Baird. The Lord Ordinary having heard parties' procurators, refuses the desire of this representation, and adheres to the interlocutor represented against.” On December 3, when counsel on both sides were present, an order was pronounced “to be ready to debate against next calling.” When the case was called, another representation for Helen Thomson was presented by her counsel, stating that the first application for the poors' roll had failed, through informality, but a second application for the poors' roll had since been made, and was now in cursu, and craving a recall of the interlocutors of November 27, and December 3, and an order for debate at the Lord Ordinary's first hour in January next. On December 18, this representation was appointed to be answered at the bar. It appeared from the accounts of the agent of James Thomson, that the attendance of his counsel at the bar on December 3, was entered as an attendance “when parties were ordered to debate on the merits;” and that his counsel had subsequently been instructed as for such debate, preparatory to the next calling of the cause, which was on January 16, 1813, when the following interlocutor was pronounced:—“Act. Moncreiff—Alt. S. MacCormack. The Lord Ordinary, having heard parties' procurators, refuses the desire of this representation, and reduces, improves, decerns, and declares, conform to the conclusions of the libel; and further finds the defender liable to the pursuer in expenses.” No reclaiming petition was presented against this judgment. Thomson obtained decree for the amount of his expenses, on March 10, 1831, and, having extracted decree, he gave a charge for the amount, being £79, 2s. 9d. Helen Thomson presented a bill of suspension of this charge, which was refused on May 11, 1813, with £44 of expenses. A second bill of suspension was also refused on May 18, by the Lord Ordinary, with £2, 2s. of expenses, and a sist for eight days was granted to enable her to petition against the judgment; but it was not brought under the review of the Inner House. On June 17, 1813, her agent borrowed up these bills of suspension at the Bill-Chamber, and they were not afterwards returned. Within one or two years afterwards, James Thomson sold the property comprehended in the deed, now reduced, and conveyed it to the purchaser.

In 1831, Helen Thomson raised a reduction of “the decree dated the 18th day of June, 27th day of November, 1812, and 16th day of January, and 10th day of March, 1813.” The main reason of reduction was, that the decree was in absence; that the agent whom she had employed to lead the proof on her behalf, had died while it was proceeding, and his successor refused to give up that part of the proof which he had taken, or any of her other papers, until he should receive payment of his account, which she was unable, through poverty, to make; that through her extreme poverty she had been unable to get her cause duly conducted, and decree had truly been pronounced without her cause being prepared and decided on its merits. In support of her right to open up the decree, Helen Thomson insisted strongly that that decree, as it stood, amounted to a conviction of forgery against her, and that there were various precedents in which the Court, for less cogent reason, had allowed a decree to be opened up, by a party who, through poverty, and consequent inability to defend himself, had been decerned against. ¹

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¹ A v. B, May 19, 1815 (F.C.)—4 Ersk. 3, 6—Millie, Nov. 27, 1801 (12176)—Young, Feb. 10, 1803 (12178)—Leith, June 7, 1822 (ante, I. 506; or 435, new ed.)—Pratt, June 9, 1825 (ante, III. 120; or 79, new ed.)—Clark, Nov. 17, 1825 (ante, IV. 182; or 184, new ed.)—Maxwell, July 2, 1825 (ante, IV. 137; or 139, new ed.)—Wood, Nov. 15, 1833 (ante, XII. 50).

James Thomson pleaded as a preliminary defence, that the decree had been obtained in foro contradictorio, not only after what was technically termed an “act of litiscontestation,” in consequence of the proof allowed, but also after a long series of procedure, throughout the whole of which Helen Thomson had appeared by counsel; and that, the decree of reduction-improbation itself bore to proceed after hearing counsel on both sides. In addition to this, she had presented two successive bills of suspension which were refused. Whether she was in a state of poverty or not, it was therefore apparent that she had always possessed the fullest means of litigating. And in particular, in regard to the plea of poverty, it had been expressly pleaded in the former action, in one of her representations, as a ground for opening up the decree of circumduction of June 18, 1812, and was repelled on hearing parties, so that there was an express res judicata against the main ground of her present action. ¹ Besides this, as the property in question had been sold soon after the decree of reduction, and Helen Thomson had lain past for about eighteen years before she brought the decree under challenge, she was barred by acquiescence and mora. Without making up a record, the Lord Ordinary (Moncreiff) “having heard parties' procurators on the preliminary defences, and having attended to the proceedings in the former action, as set forth in the summons and defences, and appearing from the record of that process, formerly produced by the pursuer for satisfying the production, sustained the plea of res judicata, dismissed the action, assoilzied the defender, and decerned, and found expenses due.” ^*

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¹ 4 Ersk. 1, 69. Observations on case of Millie, per L. Brougham, in Brown, July 17, 1835. 2 S. & M'L.'s App. 143.

* “ Note.—The decree was clearly not a decree in absence. The present pursuer not only appeared, satisfied the production, and pleaded to the case, but was a party to the proof led, and herself led some proof—as stated in the summons—though she did not report it; and she was present, by her counsel, when all the judgments were pronounced. But being thus a decree in foro, acquiesced in during eighteen years, the Lord Ordinary does not see that there is any legal ground on which he can open it up, merely on the statement that it was pronounced while the pursuer had not reported her proof, and was objecting to the circumduction. Whatever the Court might do by their supereminent powers of equity, as in the case of Millie, where the party came forward within a reasonable time, he can see nothing in the circumstances of this case which would call for such an interposition; and, at any rate, he is of opinion, that no such power could be assumed by a Lord Ordinary.”

Helen Thomson reclaimed; and the Court “recalled the interlocutor of the Lord Ordinary reclaimed against, in hoe statu, and remitted to the Lord Ordinary (Jeffrey) to prepare a record upon the preliminary defences, and thereafter to do therein as to his Lordship shall seem just, reserving all questions as to expenses.”

Under this remit a record was made up, after which the Lord Ordinary (Cockburn) “having considered the closed record and productions, and particularly the proceedings in the former action, and heard parties thereon, sustained the defence of res judicata, dismissed the action, and decerned, and found the pursuer liable in expenses.” ^*

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*“ Note.—Lord Moncreiff formerly decided this case in the same way; but his Lordship's interlocutor was recalled by the Court, because a record had not been made up. Now that this has been done, and the case reconsidered, the present Lord Ordinary concurs entirely in the views on which it was then disposed of. It appears to him, that there is not only no legal right, but no equitable claim for having the former proceedings opened up, and that it would be a dangerous precedent to disturb them.”

Helen Thomson again reclaimed; and the Judges of the First Division were divided in opinion. The Lord President and Lord Corehouse thought the interlocutor should be adhered to; Lord Gillies and Lord Mackenzie thought it should be altered, but Lord Mackenzie intimated that it was only with great difficulty that he had arrived at the conclusion of there being no res judicata regularly obtained in the former action.

Their Lordships required the opinion of the other Judges, and the following unanimous Opinion was returned:—

“We are of opinion that the interlocutor of the Lord Ordinary should be adhered to. The case of Millie was that of a judgment by default; and the party sought to be reponed, within two years after its date. The other cases are still less in favour of the pursuer. We can hardly conceive any function of this Supreme Court which calls for more caution and circumspection in its exercise, than its power to open up its own final decreets in foro, upon merely equitable considerations: and, without going at all into details, we are of opinion that it would be of the most dangerous example to apply it in such a case as the present.

“It is said, indeed, that the decreet of reduction of 16th January, 1813, was incompetently pronounced; because the only object of the calling of that date was to dispose of the representation lodged on 18th December preceding, and that this prayed only for a recall of a previous interlocutor of 27th November, circumducing the term for not proving. It appears, however, that this is a mistake in point of fact. There had been an intermediate interlocutor of 3d December, appointing parties to debate on the merits at next calling; and the representation of the 18th, besides praying generally for the recall of the former interlocutor, prayed also that “parties should be appointed to debate at the Lord Ordinary's first hour in January;” and there is no specific prayer to renew the diligence for proving. This representation was ordered to be answered at the bar; and on 16th January the judgment in question was pronounced; refusing the representation, and reducing and decerning in terms of the libel. It would rather appear, therefore, that, in disposing of that representation, the pursuer herself had contemplated two possible results; either that the circumduction might be recalled, in which case there could be no debate till the proof was concluded; or, that the circumduction would be continued, and the parties heard on the proof as it then stood. It appears accordingly that the defender, at least, was then prepared to debate on the merits; and we think it reasonable to presume, post tantum temporis, that the pursuer also was prepared; and that both were heard as fully as they required, before the decreet was pronounced.

“But even if it could be held that the primary purpose of the enrolment was to dispose of the question as to circumduction, we are of opinion that it is no impeachment of the competency of the judgment on the merits, that it was pronounced at the same calling. There was a standing order, it will be remembered, to debate on the merits; and after the Lord Ordinary had refused to recall the circumduction, there would certainly have been no incompetency in his asking the parties whether they were ready to go on with that debate; nor can it he thought at all unlikely, either that both should have acceded, and been heard; or that the pursuer, having failed in her attempt (after full hearings) to get any extension of the proof, should have intimated her conviction that she had no case on the evidence as it stood, and submitted to decree going against her. On either of these suppositions, the procedure would he perfectly regular; and as, in cases of this kind, the presumption is omnia rite et solenniter acta, we cannot allow the pursuer to surmise that there may have been irregularities, as a ground for getting the better of her own long taciturnity. As the interlocutor bears to proceed upon a hearing of parties, we must hold that parties were sufficiently heard upon all the points which it embraces.

“There is not, at all events, the shadow of a case made for letting the pursuer into a new proof, after all means of proving have probably been lost; for she appears to have been fully heard, on more than one occasion, against the circumduction; and, at these hearings, all her present objections to the proof, or the commissioner, were either disposed of, or were competent and omitted. She has really no interest, therefore, to open up the decree, which, upon the grounds already stated, we conceive to be clearly res judicata.”