Scottish Court of Session Decisions

In 1650 a stipend of six chalders, half wheat and half bear, with £400 Scots of money, and £100 Scots for communion elements, was modified to the minister of Haddington, by a decree of the Lords Commissioners for plantation of kirks and valuation of teinds. No locality then followed, but the stipend was paid apparently according to an arbitrary cast or scheme framed by the titular, which was then a practice not uncommon. Shortly before 1707 certain lands were disjoined from the parish, and annexed to the parish of Gladsmuir. The portion of stipend, which these lands had paid to the minister of Haddington, was 12 bolls, 3 firlots, 3 pecks, and 1 lippy of wheat; 10 bolls, 1 firlot, 3 pecks, and 3 lippies of bear; and £81, 13s. 4d. Scots of money. In 1707, the minister of Haddington raised a process of locality, to have his whole stipend, including that part which had been payable out of the disjoined lands, duly laid on the several heritors of the parish. In this process, the proprietor of the lands of Wester Monkriggs “craved absolvitor, in respect his lands were kirk lands, feued out, cum decimis inclusis, before the act of annexation, as appeared by the writts produced, and that they were never in use of paying any part of the stipend: Which being lykewayes considered by the Lord Ordinar, he, in respect of the writs produced, and that they were never in use of payment, fand, that the lands of Munkrigg could not be lyable in any part of the stipend.” Another heritor, Hepburn of Bearford, produced a progress of titles going back as far as 1567, when the lands of Bearford, “with the teinds thereof included,” were resigned in the hands of the Commendator of the Abbey of New-bottle, in favour of Hepburn's predecessor, to whom a charter of the lands and teinds was granted by the Commendator, which was followed by infeftment. In reference to these titles, Hepburn pleaded, as the extract of the decree of locality bore, “that the lands of Bearfoord, &c. being kirk lands, fewed out, cum decimis inclusis, before the act of annexation, could not be lyable to any part of the stipend: Whereunto Mr Alexr. Hay, advocat, answered, That Bearfoord and his predecessors have allwayes been in use of paying of a part of the stipend since the year 1650, and how farr soever his rights might free him from any furder payment, yett he ought still to continue to pay as formerly.” The party thus specially mentioned as opposing Bearford was another heritor, having a heritable right to his teinds. Hepburn alleged that the use of payment had occurred during the possession of certain liferenters, and under such circumstances as prevented it from being binding on him, and some discussion ensued as to this, after which the Lord Ordinary (Fountainhall) “in respect of Bearfoord's use of payment, ordained him to continue to pay the same quantity of the stipend formerly payed by him and his predecessors, and in respect of the writts produced, assoilzied him from all furder payment of stypend.” Hepburn presented a reclaiming petition against this judgment, and along with it he repeated a summons, which was described in the extract decree of locality, as “a declarator of exemption,” which concluded for reduction of the alleged arbitrary cast or scheme of locality, according to which the use of payment had taken place. In the discussion under the reclaiming petition, and summons so repeated, it was pleaded for Hepburn of Bearford, that “his lands might be wholly excemed from payment of any part of the stipend, in respect he holds his lands cum decimis inclusis, as appeared from the writts produced; Whereunto the prors, for the other hereters, answered, ought to be repelled. Primo, Because the rights produced were not such as could exeem the land from teind; for albeit, the rights to the lands of Bearfoord bear, cum decimis inclusis, yett it did not bear the words nun-quam antea separabantur, from which it appeared that they had been formerly separate, and being once formerly separate they ought to remain separate, soe as to be subject to the payment of stipend; and the rights produced to the teinds of his other lands did bear only cum decimis garbalibus, which could noe manner of way be interpreted to be other than ane heretable right to the teind sheaves which had been formerly in use to be drawen.” This plea was farther enforced, and the use of payment was also founded on. Hepburn replied “that the rights produced clearly instructed his lands to be kirk lands, feued out by kirkmen, cum decimis inclusis, which was all was necessary for him to instruct, and albeit, they wanted these words of style, quæ nunquam ante separabantur, that could never annul the right, the word inclusis comprehending all.” He also replied as to the use of payment.—“Which being considered by the saids Lords, they refused the desire of Bearfoord's bill, and adhered to the Lord Fountainhall's interlocutor, finding that Bearfoord ought to continue to pay the proportion of stipend formerly in use to be payed by him, and exeeming his lands from all furder payment.” Lord Blantyre and the other heritors of the parish were parties to this discussion. In terms of this decree, Hepburn's lands of Bearfoord continued to be localled on, to the amount which they had previously been in use to pay, and no more. The lands of Western Monkrig continued to be exempted in terms of the judgment quoted ante, p. 1009.

It appeared from the terms of the extract decree of locality, that, in the course of the discussion, a sufficient amount of free teinds had been found in the parish to exempt all those heritors who possessed heritable rights to their teinds, from being localled on beyond what they had previously been in use to pay. After matters had continued on this footing for above 120 years, an objection was taken, in a new augmentation and locality, by Lord Blantyre and other heritors, to a scheme of locality as prepared by the common agent, in respect that no part of the augmentation was localled on the lands of Bearford, now belonging to the Earl of Wemyss, or the lands of Wester Monkrig, now belonging to Captain Keith. The parties who took this objection were the successors in the lands of the parties to the locality 1707, who had made appearance in the discussion above-mentioned. It was, therefore, pleaded by Lord Wemyss and Captain Keith, that it was res judicata that the lands of Captain Keith were exempt from any liability for stipend whatever, and that the lands of Lord Wemyss were also exempt from liability except to the extent of the use and wont of payment prior to the locality 1707. The parties in the present process were the representatives, in relation to the lands in question, of those who were parties to the locality 1707, and relative reduction and declarator by Hepburn of Bearford. In regard to the lands of Bearford, the plea of exemption had been keenly litigated before being sustained. It was true that the views of lawyers, as to the terms of a clause effectually exempting lands from liability for stipend, might have undergone a change since that period, and possibly a different judgment on the import of the same titles might be pronounced now, if it were open to the Court to decide the question on its merits. But that very circumstance only went to explain that the judgment had not been pronounced per incuriam, but on full consideration; and the plea of res judicata precluded entering on the merits of the question now. That plea would be indeed of almost no avail, if it were only effectual to preclude a re-discussion of a cause when it appeared, that, on the merits, the same judgment would still be repeated by the Court. ¹ Although it was in a process of locality that the former judgment had been pronounced, that did not prevent the plea of res judicata from applying. That plea was always received in the Teind Court, as well as in other Scottish Courts; and it would occasion the utmost hardship, and be contrary to common practice, if in each new locality every question was to be held to be thrown open, and the judgments of former localities, though on the same subject-matter, and between the same parties, were held to be of no binding effect. As to the lands of Captain Keith, the plea of res judicata was equally applicable, although

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¹ 4 Ersk. 3, 1, and 4; 2 Connell, 374, 380.

less discussion had taken place respecting them, in consequence of the same point being involved and fully discussed as to the lands of Bearford.

The objectors answered, that there was not truly any res judicata, to the effect that the lands in question were permanently exempt, either wholly or partially, from stipend. At the date of the locality 1707, there was enough of free teind in the parish to exempt every heritor from any additional allocation beyond previous use and wont, provided such heritor had a common heritable right to his teinds. The predecessors of the whole objectors were in that position. In these circumstances the lands of Bearford had been subjected, according to their previous use and wont of payment, and exempted quoad ultra, which was just tantamount to giving them that degree of exemption, and no other, which they would have had though only a common heritable right to teinds had been contained in the titles. None of the co-heritors had any interest in that locality, to try the general question as to the right of teinds in the titles, to confer an absolute exemption quoad ultra; and it would be highly dangerous to read the decree of the Court which was then pronounced, as having adjudicated on interests which were not properly raised or pleaded before it. ¹ But independently of this, as it was a judgment pronounced in a process of locality, and each successive process of locality was a new and independent process, it was contrary to practice, as well as principle, to hold that the judgment in the old locality could form a res judicata in regard to subsequent augmentations. The whole pleas thus applicable to the lands of Bearford, were, a fortiori, applicable to the lands of Captain Keith.

The Lord Ordinary pronounced this interlocutor:—“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 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 predecessors 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

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¹ Earl of Strathmore, May 24, 1833 (ante, XI. 644); Millie, Nov. 27, 1801 (12176); Dickson, July 8, 1828; S. and D.'s Teind Cases, 174; Smith, March 5, 1823; S. and D.'s Teind Cases, 49.

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, and finds the respondents entitled to expenses.” ^*

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^* “ 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 he revived. Here the excerpts from the old record 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, assoilzied him from all furder payment of stipend.’ This interlocutor having been fully brought under review of the Court, it was unnecessary for the heritors to contest the decision as to Wester Monkrigg, till the fate of Hepburn of Bearford's plea was ascertained. Accordingly, the excerpts show that Bearford's plea was as fully, or, at least, as clearly stated to the Court in 1708, as it could be at the present day. Bearford reclaimed against the Lord Ordinary's interlocutor; and the Court, on 2d June, 1708, ordered the petition to be seen and answered in eight days, and declared ‘They would hear parties on the said cause, and the Lord Fountainhall's report the same day.’ Accordingly, the excerpts show that appearance was made for Lord Blantyre; and that he urged, at length, the very plea on the merits now indicated by the objector—vis., That the clause in the respondents’ titles wanted the words ‘nunquam antea separatis.’ The plea was probably elaborately argued, viva voce, as the first counsel at the bar of that day seem to have been employed for the parties. Nevertheless, the Lords adhered to the Lord Ordinary's interlocutor; and, that being the judgment of the whole Court as to Bearford, any separate argument to the Inner House, in the case of Monkrigg, was unnecessary.

“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 which may be the subject of discussion when the argument took place. But the Lord Ordinary can find no authority for that proposition, which he has always understood to be quite adverse to the understanding of the country and of practitioners. A great many questions of warrandice as to stipends and augmentations, have been tried during the last thirty years in processes of locality. See, in particular, the case of the Earl of Hopetoun v. Jardine, 3d July, 1811. Trustees of Lord Hopetoun v. Copland, 8th December, 1819. Case of Major M'Donald, Powderhall v. Heriot's Hospital; and various other cases, reported in ‘Shaw's Teind Cases,' pp. 134—268. Besides, nearly the whole questions as to claims for exemption on decimæ inclusæ titles, have all been tried in localities. See a great variety of these cases (all tried in localities), enumerated in the last edition of Sir John Connell's work on Teinds, vol. 11. pp. 24—37, &c. Indeed, the very case of Ochterlony, in which President Blair so fully explained his views on this obscure subject, occurred in the locality of Carmyllie. But, according to the argument of the objectors, the decision of that case, and all other contested questions of title or warrandice, if decided in localities, will not form res judicata in any future locality of the same parish, quoad subsequent augmentations, if any succeeding heritor choose to renew the litigation.

“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 be locality or declarator. Indeed, it is thought that a locality is the most fit and appropriate process for ascertaining finally and permanently the nature of a title, as comprehending or excluding a decimæ inclusæ right.

“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,’ 3d 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 objectors reclaimed. ^*