Scottish Court of Session Decisions

This is an action of declarator and payment at the instance of Sir William Henry Gibson Carmichael of Skirling, Bart., against Sir Windham Carmichael Anstruther of Anstruther and Carmichael, Bart. (1) to have it found and declared that the defender and his heirs and successors in the lands and estate of Carmichael and others, which formerly belonged to James, second Earl of Hyndford, are bound to warrant the teinds, parsonage, and vicarage, of the lands and barony of Skirling and others, disponed as principal by the said Earl of Hyndford and his spouse in favour of Mr William Carmichael, advocate, and his heirs and assignees, by disposition dated the 23 ^d May and 3 ^d June 1724, against all augmentation of minister's stipend, or other burdens imposed or to be imposed in all time coming on the said teinds after the date of the said disposition, over and above the stipend modified to the minister of Skirling on 25 ^th July 1739; (2) to have the defender decerned and ordained to make payment to the pursuer of the sum of £338, 7s. 2d. sterling, being the amount of stipend and augmentation paid by the pursuer to the minister of Skirling for crops and years 1862 and 1863 furth of the teinds of the foresaid lands, over and above the said modified stipend, with interest on said sum; and (3) to have the defender and his heirs and successors ordained to free and relieve the pursuer and his heirs and assignees of all augmentations of minister's stipend or other burdens imposed or to be imposed upon the teinds of the said lands in all time coming.

The pursuer averred—(Cond. 34)—In October 1818 his predecessor in the said entailed lands of Skirling, Sir Thomas Gibson Carmichael, in consequence of the refusal of Sir John Carmichael Anstruther, the then heir of entail in possession of the lands of Carmichael and Anstruther, and his tutors and curators, to satisfy his claim under the said clause of warrandice and obligation contained in the disposition of 1724, raised in the Court of Session an action of declarator and payment against the said Sir John Carmichael Anstruther (otherwise Sir John Anstruther Carmichael), and his tutors and curators, concluding for payment of the sum of £260, 0s. 10d., being the difference between the stipend and communion elements as modified by the decree of 25th July 1739, and the stipend and communion elements payable to the minister of Skirling for the crop and year 1817, with interest from the date at which the same was paid to the minister, and for decree ordaining the said Sir John Carmichael Anstruther, and his tutors and curators, as defenders and heirs and successors in the said estates of the said James, the second Earl of Hyndford (i.e., the estate of Carmichael) to free and relieve the said Sir Thomas Gibson Carmichael, and his heirs and successors in the lands and barcny of Skirling, of and from payment of all augmentations of stipend granted or to be granted to the minister of Skirling, over and above that granted on the said 25 ^th July 1739, in all time to come, from and after the said crop and year 1817. (Cond. 35) To this action defences were lodged by Sir John Carmichael Anstruther and his tutors, and ultimately, on January 31, 1821, decree was pronounced by the Lords of Council and Session, whereby they repelled the

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defences, decerned for the sum sued for, and ordained the said Sir John Carmichael Anstruther and his tutors and curators, “and heirs and successors in the said estates, to free and relieve the pursuer and his heirs and successors of and from payment of all augmentations of stipend granted or to be granted to the minister of Skirling, over and above that granted on the said 25th July 1739, in all time to come, from and after the said crop and year 1817.” (Cond. 36) This decree was acquiesced in by Sir John C. Anstruther and his tutors and curators, and was obtempered and implemented up to the date of his death in 1831. He was succeeded in the entailed estate of Carmichael by his uncle, the present defender, who made up titles thereto as heir of entail, and continued to implement the above-mentioned decree until May 1862, when he refused to continue the annual payments to the minister.

The defender averred:—(Stat. I.) The summons in the action referred to in the 34 ^th article of the revised condescendence was directed against Sir John Anstruther Carmichael, and not against Sir John Carmichael Anstruther. Sir John Carmichael Anstruther never was called Sir John Anstruther Carmichael. The summons was not duly executed against Sir John Anstruther Carmichael and his tutors and curators. The execution of the summons bears that the messenger warned and charged Sir John Anstruther Carmichael. It further bears that it was executed by delivering a full double thereof, with a copy of citation for Sir John Anstruther Carmichael, Bart., and a like double and copy thereof for his tutors and curators, “to John Ker, Esquire, Writer to the Signet, Edinburgh, their known agent, who accepted thereof, and agreed to hold the said summons as duly executed against the said Sir John Anstruther Carmichael, Bart., and his said tutors and curators.” The said Sir John Carmichael Anstruther had then no tutors or curators, and the said John Ker had no power or authority to accept the said service. The summons was not duly called. It was called against “Sir John Anstruther Carmichael, of Anstruther and Carmichael, Baronet, and his tutors and curators, if he any has, for their interest.” Farther, the decree pronounced in said action was inept, because it was a decree not against Sir John Carmichael Anstruther, but Sir John Anstruther Carmichael and his tutors and curators.

The pursuer pleaded, inter alia:—8. The present defence is excluded by the decree in foro of 31st January 1821, which makes the title of the heirs and successors of the said Sir Thomas Gibson Carmichael, the first, in the lands and barony of Skirling, to the said claim of warrandice or obligation, and to relief under the same, as also the liability of the said Sir John Carmichael Anstruther's heirs and successors in the estate of Carmichael, in such relief, res judicata. 9. If any of the defender's present pleas were not stated in the proceedings which terminated in the said decree in foro of 31st January 1821, the said pleas, even if originally competent, cannot now be maintained in respect of the exception of “competent and omitted.” 10. The defender's fourth plea-in-law falls to be repelled, in respect that (1) the proceedings therein referred to were taken in all respects regularly, and in terms of law, against the said Sir John Carmichael Anstruther (otherwise Sir John Anstruther Carmichael), and his tutors and curators; (2) The said Sir John Carmichael Anstruther and his tutors lodged defences to the said action, and litigated the same until it terminated in the decree of 31st January 1821; (3) The reasons set forth in the said plea cannot be stated ope exceptionis, or otherwise than in a regular action of reduction of the said decree; and (4) The present defender did not challenge or take steps for setting aside the said decree within four years after he succeeded to the said Sir John Carmichael Anstruther.

Various pleas were stated for the defender. Inter alia, he pleaded:—4. The decree founded on is inept, for one or other of the following reasons: — (First) The summons upon which the same proceeded was not duly called against the said Sir John Carmichael Anstruther; (Second) The summons was not duly executed against him and his tutors and curators; (Third) The said Sir John Carmichael Anstruther, against whom the decree was obtained, died in pupillarity; (Fourth) The summons was not directed against Sir John Carmichael Anstruther, and the decree is not against him, but, on the contrary, both the summons and the decree were against a person called Sir John Anstruther Carmichael. 6. The decree founded on by the pursuer is in no way res judicata against the defender, who does not represent the defender in said action; and separatim, the said decree is not res judicata, in respect that no question as to the title of the pursuer was raised in that action, and no judgment was pronounced thereon. 8. The defender not representing the granter of the obligation or the person against whom the alleged decree was obtained, he is not liable as concluded for.

The Lord Ordinary (Kinloch), on the 8th December 1865, gave effect to the pursuer's pleas in the following interlocutor:—Finds that the judgment pronounced by the Court, on 31st January 1821, in the action at the instance of Sir Thomas Gibson Carmichael against Sir John Carmichael Anstruther, and his tutors and curators, is res judicata, to the effect that the pursuer in the present case, as heir and successor to the said Sir Thomas Gibson Carmichael in the estate of Skirling, is entitled to be relieved of the augmentations libelled by the defender, as the heir and successor of the said Sir John Carmichael Anstruther, in the estate of Carmichael: Finds and declares, in terms of the first or declaratory conclusions, and of the last or conclusion of relief contained in the summons in the present case, and decerns; and with regard to the petitory conclusion, appoints the cause to be enrolled.

W. Penney.

Note.—The present action is brought by Sir William Henry Gibson Carmichael of Skirling against Sir Windham Carmichael Anstruther of Carmichael, in order to enforce an obligation of relief from augmentations of stipend to the minister of Skirling, alleged to be contained in the disposition of the lands of Skirling by James, second Earl of Hyndford, to Mr William Carmichael, dated 23 ^d May and 3d June 1724.

The first question to be considered, and that which, if decided in the affirmative, supersedes every other, is whether the Court has or has not already pronounced a judgment establishing the pursuer's right to this effect. The pursuer maintains the affirmative.

The action in which the judgment in question was pronounced was raised on 14th October 1818. It is raised at the instance of Sir Thomas Gibson Carmichael of Skirling, the succession to which estate is set forth as having opened to him “as heir of entail under a deed of entail executed by John, the fourth Earl of Hyndford, who had, before succeeding to the title and estate of Hyndford, succeeded to the said lands and barony of

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Skirling, as heir to the Honourable William Carmichael, his father.” The action is directed against “Sir John Anstruther Carmichael, of Anstruther and Carmichael, Baronet, and his tutors and curators, as in possession of the estates of James, the second Earl of Hyndford.” The summons narrates the disposition of 1724, by which William Carmichael acquired the lands of Skirling from this James, second Earl of Hyndford; and the claim of warrandice against augmentations contained in that disposition; and after a petitory conclusion for arrears of augmentations, concludes thus:—“The said Sir John Anstruther Carmichael, Baronet, and his tutors and curators, and heirs and successors in the said estates, ought and should be decerned and ordained, by decree foresaid, to free and relieve the pursuer, and his heirs and successors in the said lands and barony of Skirling, of and from payment of all augmentations of stipend granted or to be granted to the minister of Skirling, over and above that granted on the 25th day of July 1739, in all time coming.”

The messenger's execution, attached to the summons, bears it to have been executed by delivering a copy for Sir John Anstruther Carmichael, and another copy for his tutors and curators, “to John Ker, Esq., W.S., Edinburgh, their known agent, who accepted thereof, and agreed to hold the said summons as duly executed against the said Sir John Anstruther Carmichael, Baronet, and his said tutors and curators.”

Defences were given in to this action, which are entitled “Defences for Sir John Carmichael Anstruther, of Anstruther and Carmichael, Baronet, and his tutor ad litem.” The process, as produced, does not show in any of its numbers an appointment by the Court of a tutor ad litem.

There were afterwards lodged additional defences under the title of “Additional Defences for Sir John Carmichael Anstruther, of Anstruther and Carmichael, Baronet, and his tutors-dative.” The names of the tutors-dative are not given; and the process as produced does not show any minute formally sisting them.

A debate having been had, mutual memorials were ordered. That for the defence was entitled, “Memorial for Sir John Carmichael Anstruther, Bart., and his tutors, defenders.”

On 31st January 1821, “The Lord Ordinary, having advised the memorials, productions, and whole procedure, for the reasons before explained, repels the defences; and in respect that no objection is made to the sum concluded for, decerns against the defenders in terms of the libel; but in respect that all the documents were not shown to the defenders before this action was commenced, nor even produced with the summons, finds no expenses due.”

A reclaiming petition was presented for “Sir John Carmichael Anstruther, of Anstruther, and Carmichael, Bart., and his tutors.” On 22d July 1821, “The Lords, having considered this petition, refuse the desire thereof, and adhere to the interlocutor complained of.”

The extracted decree bears to have been pronounced “upon a summons and action pursued before the Lords of Council and Session, at the instance of Sir Thomas Gibson Carmichael of Skirling, Bart., against Sir John Anstruther Carmichael of Anstruther and Carmichael, Bart., and his tutors and curators, if he any has, for their interest.” It narrates the summons at length, and bears, “The Lords of Council and Session, sitting in judgment, repelled, and hereby repel, the defences; and in respect that no objection is made to the sum concluded for, decerned and ordained, and hereby decern and ordain, the said Sir John Anstruther Carmichael, Bart., and his tutors and curators, to make payment to the pursuer of the foresaid sum of £260, 0s. 10d. sterling, with the legal interest thereof from 1st June 1818, being the date at which the same was paid by the pursuer to the said minister of Skirling, and in time coming during the not-payment: And further, decerned and ordained, and hereby decern and ordain, the said Sir John Anstruther Carmichael, Bart., and his tutors and curators, and heirs and successors in the said estates, to free and relieve the pursuer, and his heirs and successors in the said lands and barony of Skirling, of and from payment of all augmentations of stipend granted or to be granted, to the minister of Skirling, over and above that granted on the said 25th July 1739, in all time come from and after the said crop 1817.”

The Lord Ordinary is of opinion that this judgment forms res judicata in regard to the question raised in the present action.

1. The parties to the present case are indisputably the heirs and successors in the respective estates in question, of the parties to the former process. The pursuer is the heir in the estate of Skirling to the pursuer of the former action. The defender is the heir in the estate of Carmichael to the defender in the former action. If the judgment establishes a right of relief by the heir in Skirling against the heir in Carmichael, the pursuer is the undoubted creditor, the defender the undoubted debtor in the obligation.

2. The matter in controversy in the former case is identically the same with that in the present. It is, whether, by virtue of this disposition of May and June 1724, the heir in possession of Carmichael is liable to relieve the heir in possession of Skirling of all augmentations of stipend posterior to 1739. The judgment found that he was.

3. The former action was rightly brought against Sir John Anstruther Carmichael (admittedly a pupil) and his tutors and curators. Whatever difficulties may occur in regard to an action sued by a pupil, in respect of the general principle that a pupil has no persona, the necessity of the case has made it competent to direct an action against a pupil and his tutors and curators, if he any have. It may be necessary to look into the proceedings in such an action to discover if the pupil has been properly defended,—by his tutors and curators, if he have any, by the appointment of a curator ad litem, if he have not. But the action is competently laid; and a decree in absence taken in such an action will be valid, although liable to be opened up like any other such decree. The decree is not null. It is only open to an inquiry into its soundness, if pronounced in absence. In the present case, it was pronounced in foro; and is therefore conclusive, if not impeachable on other grounds. Sinclair v. Stark, 15th June 1828, 6 S. 336.

4. The defender objects that the former action was directed against “Sir John Anstruther Carmichael,” and not against “Sir John Carmichael Anstruther,” which was the true name of the defender. This objection appears to the Lord Ordinary to be of no weight. The identity being unquestionable, the Lord Ordinary considers this clerical inversion of the two names, both undoubtedly borne by the defender, to be immaterial. Constat de persona. But, besides this, the defender and his tutors appeared and pleaded to the action under the true designation of Sir John Car

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michael Anstruther. The Lord Ordinary considers that this would be sufficient to neutralise the objection, even if otherwise well founded.

5. The defender further objects that the former action was not duly executed, not being formally executed, against the defender at his dwelling-place, and against tutors and curators at the head burgh of the shire, but simply executed by service accepted by the agent—for which there was not, and in the case of a pupil could not, be any authority. The pursuer answered, inter alia, that the execution of the summons was one of those warrants of a decree which could not be asked for or inquired into after the lapse of twenty years. Lane v. Campbell, 17th January 1752, M. 5179. The Lord Ordinary held this a good answer. There was the further answer, that appearance was actually made in the process, on the part of the defender, without any objection to the citation, after which no objection could be stated in respect of defectiveness of citation. This answer the Lord Ordinary thinks also sufficient. The fact that at this distance of time there is not discovered in the process any formal appointment of a tutor ad litem, or a formal sisting of the tutors-dative, or that these are not specified by name in the titles of the still extant papers, appears to the Lord Ordinary insufficient to affect the conclusion that appearance was made, and issue joined, and the case fully litigated. In such a case, many objections are inapplicable, which might be formidable if stated against a decree in absence.

6. The defender lastly contends that the plea of res judicata cannot be given effect to, inasmuch as the point now in controversy was not brought into discussion, nor determined in the former case. What the defender was understood to mean was that the main ground of defence relied on in the present case is, that the right of relief, originally competent to William Carmichael, has not been transmitted from him by effectual deeds of transmission, as in certain well-known judgments of the House of Lords was held to be necessary; and that this defence was not stated, and therefore was not adjudicated upon, in the former case.

The defender's argument on this point has involved throughout a confusion between the point in issue in a case, and the legal arguments by which the point has been either maintained or assailed. The point in issue in the present case is identical with that in the former, to wit, whether there was a right of relief from augmentation of stipend transmitted from William Carmichael, to his heirs and successors in the lands of Skirling, against the heirs and successors in the estate of Carmichael. The medium concludendi in the former case was, exactly as here, that such a right was transmitted. It was on the ground of such transmission, whether expressly set forth or not, and on this exclusively, that the pursuer of the former action could possibly prevail. It cannot therefore be maintained that the point at issue in the present case is in the least different from that which arose in the former. What the defender's contention amounts to is, that in pleading to that point the defender in the former case omitted an argument on the defectiveness of the transmission, — a thing not wonderful to happen, seeing that the discussion was long prior in date to those judgments in the House of Lords, by which some ancient Scottish prepossessions were rather rudely shaken. But it never will destroy the effect of res judicata merely to say that former advisers omitted an argument which either the ingenuity or the better information of after counsellors reared up. If this were sanctioned, there would probably never be res judicata in any case. At the best the case is one of a plea of competent and omitted and in the case of a defender this is never held to prevent res judicata being given effect to—Stair, iv. 1. 50; Ersk. iv. 3. 3.

It is true that in the former case the defender Sir John Carmichael Anstruther was a pupil; and it is sometimes loosely said that “competent and omitted” is not proponable against a minor. But, soundly interpreted, this only means that the minor may have redress against the consequences of the omission by an action of reduction on the ground of minority and lesion, raised, as such an action must be, within the quadriennium utile. In the present case Sir John Carmichael Anstruther died before he attained majority. But this only extended the right of redress of his successor, the present defender, to a period of four years after Sir John's death. Admittedly no reduction was brought.

7. The Lord Ordinary is, on these grounds, of opinion that the judgment of 1821 decides the question raised in the present action, and precludes the necessity of inquiring whether the right of relief was in reality well transmitted from William Carmichael to his successors in the lands of Skirling. There were some arguments used by the pursuer in support of the plea of res judicata, which the Lord Ordinary was not prepared to adopt. It was said that all objections to the decree of 1821, of whatsoever kind, were excluded by the operation of the negative prescription of forty years. But so soon as that prescription was introduced into the case, the answer was introduced that the years of Sir John Carmichael's minority (which were all the years of his life) must be deducted; and as these did not terminate till 1831, forty years had not elapsed prior to the raising of the present action, nor have elapsed now. An argument was also founded on alleged homologation of the judgment of 1821, by payments under it. But, like all other arguments on homologation, this would require an investigation into the circumstances in point of fact in which the payments were made, before the plea could be sustained. It appeared, however, to the Lord Ordinary, that, laying aside these arguments, there was enough left in the case to warrant a decision in favour of the pursuer.

The case is ordered to the roll in order to fix the precise arithmetical amount of arrears of stipend for which decree should go out, under the petitory conclusion. W. P.

The defender reclaimed.