Scottish Court of Session Decisions

This question, along with some others relating to the description of certain lands, arose in the locality of Balmerino, between Mr Stuart of Balmerino and Miss Morison of Naughton, and related to the lands of Wester Kilburns or Preston's Kilburns, extending to about eight acres, and belonging to Miss Morison of Naughton.

The Lord Ordinary ( Gifford) repelled the objection of Mr Stuart, and added the following note, which explains the question.

“The objector, Mr Stuart, maintains that these lands are unvalued, and have improperly been omitted from the state of teinds and scheme of locality.

The answer for Miss Morison and her curators is, that the lands in question are part of the lands and barony of Naughton, and were valued with the lands of Naughton, and with the other lands contained in the valuation of 22d February 1637. By that decree of valuation the whole lands of Naughton and certain other lands were duly valued, and by instrument of sasine in favour of Mr Hay, by whom the valuation was led, the lands of Naughton are shown to have included, inter alia, the lands of Brownhills, Galohill, Galray, Scurr, et Kilburns, and various others, all united into the barony of Naughton. It is further maintained by Miss Morison and her curators that it is res judicata in the present process, by a judgment of Lord Ardmillan of 20th March 1857, affirmed by the Inner House 9th July 1858, that the lands in question are valued by the valuation of 1637, and that it is now incompetent to open up the question. The Lord Ordinary is of opinion, though not without considerable hesitation, that Mr Stuart's objection is excluded by the judgments of 1857 and 1858, and by what has taken place in the present process of locality.

(1) In the record made up between the Lord Advocate and Miss Morison in 1855, the Lord Advocate, as representing the Crown, maintained that Miss Morison's whole lands stated as in Balmerino ‘have never been valued;’ and then an enumeration is given of various lands, and inter alia, ‘Kilburns (including Preston's feu).’ The question was thus distinctly raised, whether Kilburns, including Preston's feu (that is, the subject in question), was or was not valued. Now, Lord Ardmillan found, on 20th March 1857, that the various lands mentioned, and specially the lands of Kilburns, are included in the decree of valuation of 1637, and this interlocutor was affirmed. It was thus fixed that Kilburns, including Preston's feu, was a subject the teinds of which were valued, and yet this is the very point which the objector wishes to try over again. The expression in the interlocutor, that the lands are parts of the barony of Naughton, was not intended as a limitation of the finding, so as to leave it open to maintain that any or that all of the lands were not parts of the barony.

No doubt the present objector was not a party to the former record, but the Crown had a title to try the question (as was expressly found), and tried it fairly and deliberately in this very process, to which the present objector or his predecessor was all along a party. The judgment was undoubtedly binding on Miss Morison, and, the Lord Ordinary thinks, on all the heritors. It would lead-to a strange result if every separate heritor was entitled to try the same question over again as to the same lands, and to obtain, it may be, different decisions.

It may be true that the particular point or plea which the objector now seeks to raise was not argued by the Lord Advocate. This, however, does not appear. It certainly might have been argued, and the present objector, if he was not satisfied with the pleadings, should have himself appeared and supported the objection. On the whole, the Lord Ordinary thinks it would be unsafe to allow the question now to be reopened. It is quite fixed that a judgment in one process of locality forms res judicata in all subsequent localities in the same

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parish.—See Blantyre v. The Earl of Wemyss, 22d May 1838, 16 S., 1009.

(2) The Lord Ordinary also attaches great weight to the admission made by the common agent in his answers to Miss Morison's condescendence, lodged in 1843, in which the common agent expressly admits that Preston's fen (the lands in question) was a ‘part of Naughton, and valued in 1637, along with the other parts of that estate.’ Great weight has been given to admissions by a common agent, who, without any express authority, can bind all the heritors, as was held by the House of Lords in Hopetoun v. Ramsay, 22d March 1846, 5 Bell's Appeals, 69. The Lord Ordinary is not satisfied with the objector's answer to this, that the objector is not a mere heritor, but titular of part of the parish, and that as titular the common agent did not represent him. The Lord Ordinary thinks that the common agent represents all who have a common interest in the allocation of the stipend, and, among others, the titular or titulars, who have often a vital interest in the allocation, and who are really the heritors, or the heritable proprietors of the teinds. Of course, there are many cases where the titular's interest is opposed to that of the general heritors, and then he appears for himself. The common agent in the present case was really acting for all concerned. Anciently the titular himself used to prepare the locality, and the practice of electing a common' agent superseded this.”

Mr Stuart reclaimed.

Robertson for him.

Shand and Webster for the respondent.