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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> The Honourable Ramsay Maule of Panmure - Lord Advocate (Jeffrey - Murray v. William Maule, Esq. - Dr. Lushingto - Robertson [1833] UKHL 6_WS_586 (27 August 1833)
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Cite as: [1833] UKHL 6_WS_586
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SCOTTISH_HoL_JURY_COURT
Page: 586↓
(1833) 6 W&S 586
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND, 1833.
1 st Division.
No. 40.
v.
[
Subject_Res Judicata — Entail. —
Circumstances in which (reversing the judgment of the Court of Session) a decree pronounced in 1782, in a question with an heir of entail, was held res judicata as to part of the subject matter thereof, in a question with a subsequent heir of entail.
James Maule, fourth Earl of Panmure, having engaged in the rebellion 1715, was attainted, and his honours and estates of Panmure, Brechin, and Ballumbie were forfeited to the crown. His Countess, Lady Margaret Hamilton, was allowed to retain her life-rent of the family seat of Brechin, and also an annuity over the estate of Panmure, which had been secured to her by her contract of marriage.
James, the attainted Earl, died without issue, and was succeeded by his immediate younger brother, Mr. Harry Maule, proprietor of the estate of Kelly, who entered a claim to the estate of Ballumbie (which alone had been entailed), and it was sustained. In the year 1719, the estates of Panmure and Brechin were purchased by the York Buildings Company.
On the 23d of April 1724 the York Buildings Company granted a tack, in favour of Harry Maule and his
Page: 587↓
On the same day, they granted a lease to the Countess and her assignees of the mansion house of Panmure, and other subjects, at the rent of 100 l., also for ninety-nine years from the term of entry, which was declared to begin on the 15th of May 1724.
On the 5th of June of the same year the Countess granted an assignation of the lease of the mansion house of Panmure (reserving her own life-rent) to Harry Maule and the heirs male of his body; which failing, his other heirs and assignees whatsoever, the eldest heir female succeeding without division.
Harry Maule had four sons, George, James, William, and John. George and James predeceased their father without issue. William was afterwards created an Irish peer, by the title of Earl of Panmure. John was an advocate at the Scotch bar, and afterwards one of the barons of exchequer. Harry Maule had also two daughters, Henrietta and Jean; the former of whom died unmarried, and the latter married Lord Ramsay, son of the third Earl of Dalhousie, who was the grandfather of the appellant, the Hon. Ramsay Maule.
In the year 1730 Harry Maule, his two sons William and John, and the Countess, executed five separate entails of the property respectively belonging to them, in favour of the same series of heirs; viz., 1st, An entail of the estate of Kelly by Harry Maule, with consent of his two sons; 2d, An entail of a bond to the extent of 9,000 l. granted by his son William
Page: 588↓
The Countess of Panmure died on the 6th of December 1731, and Harry Maule on the 23d of June 1734, upon which last event William Maule, afterwards Earl of Panmure, took possession of the taillied estates.
On the 12th of October 1745 he executed a general disposition of all his lands and estates, including the leases of Brechin and Panmure, in favour of himself and the heirs male lawfully to be procreated of his body; whom failing, to John Maule (Baron Maule), and the heirs male lawfully to be procreated of his body; whom failing, to his own nearest heirs and assignees whatsoever, the eldest heir female always succeeding without division.
On the 10th of May 1758 he executed another disposition in favour of himself and the heirs male of his body; whom failing, to his brother John, and the heirs male of his body; whom failing, to his own nearest lawful heirs and assignees whatsoever, of all his heritable estates, with power of revocation.
In the year 1765 a large portion of the forfeited estate, comprehending the mansion house and demesne of Brechin, was exposed to sale, and was purchased by the Earl. On completing the purchase his Lordship expede a crown charter, in which he included the estates of Kelly and Ballumbie; and, failing himself and the
Page: 589↓
In the year 1781 Baron Maule died unmarried, and in his repositories there were found two separate parcels containing the deeds of entail executed in 1730, and which had been deposited with him; and also a deed, bequeathing the parcels to the respondent's father, as the heir called by these deeds. On this being made known, the Earl of Panmure executed in duplicate, on the 18th of August and 8th of September 1781, a deed of declaration, translation, and revocation, ratifying the settlements which he had made in 1775 and 1779, and revoking the deeds which had been found in Baron Maule's repositories; and on the 6th of October of the same year, he executed a disposition in favour of the Earl of Dalhousie, and the heirs therein mentioned, of all his property, both heritable and moveable, under certain
Page: 590↓
The Earl died on the 4th of January 1782, at the age of 82, without issue; whereupon a competition of brieves ensued between the respondent's father, the late Thomas Maule, Esq., and the present appellant, each claiming right to the estates and leases comprehended under the various entails. Previous to this an action of reduction and declarator had been raised by the late Earl, and on his death was insisted in by Lord Dalhousie, on his own behalf as life-renter, and as administrator in law for his son the appellant, as fiar, against the respondent's father, for setting aside the deeds of entail of 1730. The latter, on the other hand, raised a counter action of reduction improbation, for having all deeds done in contravention of these entails of 1730 reduced. The respondent was called as a party in these proceedings,—an execution against him personally having been returned, and also against his tutors and curators, if he any had, edictally, at the market-cross of Dumfries. The Court of Session, on the 5th of March 1782, pronounced the following judgment:—
“On report of Lord Gardenston, senior Lord Assessor, who, along with Lord Kennet, attended the Macers in the above-mentioned competition of brieves, and having advised the mutual informations given in by both parties, with the several processes which are now conjoined, writs produced and proof adduced, and having heard parties procurators in their own presence, the Lords find,
Page: 591↓
that the deed of taillie executed by the deceast Mr. Harrie Maule of Kelly, with consent therein mentioned, in the year 1730, of his lands and estate of Kelly, and also the deed of taillie executed by the late William Earl Panmure, in the aforesaid year, of his lands and estate of Ballumbie, are cut off both by the positive and negative prescription; and that the obligation for employing 9,000 l. sterling, executed by the said William Earl of Panmure in the aforesaid year, is cut off by the negative prescription; and therefore sustain the reasons of reduction of these three deeds, and reduce, decern, and declare accordingly: Find that the said William Earl of Panmure had full power to make the deed of taillie executed by him in favour of the said Mr. William Ramsay Maule and his administrator at law; repel the reasons of reduction of that deed of taillie, and assoilzie the said Mr. William Ramsay Maule and his administrator at law from the process of reduction improbation and declarator, at the instance of the said Lieutenant Thomas Maule against them, in so far as the same relates to the estates of Kelly and Ballumbie, and also from the process against them for implement and performance of the prestations contained in the obligation for the 9,000 l.: Find that the said Mr. William Ramsay Maule is entitled to be served heir of taillie and provision to the said deceast William Earl Panmure, his grand uncle, in virtue of the foresaid deed of taillie in his favour; and remit to the Macers to proceed in his service accordingly in the brieve brought before them by him and his administrator in law: Find that the said Lieutenant Thomas Maule Page: 592↓
has right to take up the leases of the house and parks of Panmure, and house and parks of Brechin, and decern against the said Mr. William Ramsay Maule, and his said administrator in law, in the conclusions of declarator and removing in the foresaid action at the instance of Lieutenant Thomas Maule, so far as the same respects these leases, and remit to the Macers to proceed in his service in so far as regards these two leases; but find that he is not entitled to be served heir male of taillie and provision to the said William Earl Panmure, in virtue of the deed of taillie of the estate of Kelly executed by the said Mr. Harrie Maule, nor in virtue of the deed of taillie of the estate of Ballumbie executed by the said William Earl of Panmure, and that his service on the brieve taken out by him cannot proceed with regard to the said estates of Kelly and Ballumbie; and remit to the Macers to dismiss the same accordingly, in so far as concerns these two estates, and decern.”
An appeal was immediately entered by Lord Dalhousie and the appellant against this judgment, so far as it was unfavourable to them; but it was afterwards withdrawn. No appeal, so far as it related to the estates of Kelly and Ballumbie and the bond, was entered by the respondent's father.
Thereupon a deed in the form of a submission, comprehending all the proceedings under the actions, was, on the 30th March 1782, entered into betwixt Lord Dalhousie, for himself, and as administrator in law for the appellant, on the one part, and Thomas Maule, for himself, and as administrator in law for his son the respondent, on the other part.
Two days after the date of the submission, (2d of
Page: 593↓
The respondent's father died in the month of November 1789; and in the year 1809, the respondent, alleging that he had been in the meanwhile ignorant of the nature of his rights, raised an action against the appellant, before the Court of Session, concluding for reduction of the submission and decreet arbitral, and claiming the benefit of the judgment of 1782, in favour of his father, in respect to the leases of Brechin and Panmure.
On the 9th of March 1813 the Second Division of the Court pronounced an interlocutor in these terms:—
“The Lords, having resumed consideration of this process, and advised the mutual informations and additional informations for the parties, writs produced, and former proceedings, repel the reasons of reduction, sustain the defences, assoilzie and decern: Find the defender entitled to expenses, allow an account thereof to be given in, and remit to the auditor to examine the same, and report; superseding extract till the first box day in the ensuing vacation; and, if
Page: 594↓
a petition shall then be given in, supersede extract farther till the petition shall be disposed of.”
Against this interlocutor the respondent appealed; and upon the 10th of May 1816, the House of Lords pronounced this judgment:—
“The Lords spiritual and temporal, in Parliament assembled, Find that in this action and proceeding between the present appellant and respondent, the alleged submission and alleged decree arbitral, of the respective dates of the 30th of March 1782 and 2d of April 1782, ought not to be considered as being or having in law the effect of a submission or decree arbitral, but as a form adopted in which an agreement previously made between Thomas Maule, the appellant's father, and George Earl of Dalhousie, parties to the said submission, was concluded; and, with this finding, it is ordered that the said cause be remitted back to the Court of Session in Scotland, to review the interlocutor complained of in the said appeal, and upon such review to do therein as is just and consistent with this finding.”
On the case returning to the Court of Session, their Lordships, on the 2d of December 1817, pronounced this interlocutor:—
“The Lords, having resumed consideration of the mutual informations for the parties, with the additional informations, and whole circumstances of the case, sustain the defences pleaded for the defender, assoilzie him, and decern.”
Upon a second appeal by the respondent, the House of Lords, on the 10th of July 1819, pronounced a judgment in these terms:—
“It is ordered and adjudged by the Lords spiritual and temporal, in Parliament assembled, That the said interlocutor
Page: 595↓
therein complained of be and the same is hereby reversed, so far as it is inconsistent with the order of this House of the 10th of May 1816, remitting the cause back to the Court of Session in Scotland to review the interlocutor of 9th March 1813 complained of in the former appeal, and so far as it sustains generally the defences pleaded for the defender, and except as herein-after expressed: And it is farther ordered and adjudged, that the instrument of 2d April 1782, purporting to be a decreet arbitral, ought to be set aside and reduced as a decreet arbitral affecting any rights of the appellant: And it is declared, that, under the circumstances of this case, the interlocutor of 1st March 1782 is not to be considered as final and conclusive against the respondent with respect to the leases in question; and therefore, as to so much of the appellant's action of reduction and declarator as seeks a declaration of the rights of the appellant to such leases, it is further ordered and adjudged, that the said interlocutor of 2d December 1817 be and the same is hereby affirmed, but without prejudice as to any question between the parties in any other action touching any property comprised in the deeds of taillie in the pleadings mentioned.”
This judgment was applied by the interlocutors of Lord Cringletie, Ordinary, the one dated the 26th of November 1819, in these terms:—
“The Lord Ordinary, having considered the petition and remit from the Court, assoilzies the defender from the conclusions of the libel of declarator, and decerns.”
And the other dated the 7th of March 1820, in these terms:—
“The Lord Ordinary, having advised this petition for the Honourable William Maule, with the interlocutor
Page: 596↓
of the House of Lords, therein recited, the interlocutor of the Lords of the Second Division applying the same and remitting the cause to the Lord Ordinary, and mutual minutes for the parties, observes, that in the said interlocutor of the House of Lords there is a clerical mistake in terming the action a declarator, which it is not, the same being a reduction of the decreet arbitral therein mentioned, also a removing of the said Honourable William Maule from certain subjects therein described, and of count and reckoning for the rents thereof; and therefore the Lord Ordinary, in application of the said judgment of the House of Lords, and remit by the Lords of the Second Division to him, reduces the said decreet arbitral, and decerns and declares accordingly; but assoilzies the said honourable defender from the conclusions of removing and of countand reckoning contained in the said summons, and decerns, “without prejudice as to any question between the parties in any other action touching any property comprised in the deeds of taillie in the pleadings mentioned,” viz. in this action; and, of consent of parties, alters the interlocutor of date the 26th November last to the above extent.” *
In the year 1821 the respondent raised a new action against the appellant, in which he claimed right, under the entails of 1730, both to the estate of Kelly and Ballumbie, and to the sum of 9,000
l., and also to the leases of Brechin and Panmure as heir of entail. In defence
_________________ Footnote _________________ * In the meantime the appellant raised an action against the respondent for repayment of 2,500
l., being the sum that remained due out of the 3,500
l. ordered to be paid by the award; and decree was, upon the 22d of November and 7th December 1822, pronounced.
Page: 597↓
“The Lord Ordinary, having considered the memorials for the parties, and whole process, Finds that by the extracted decree of the Court of Session of 5th March 1782, by the judgment of the Court of Session, 9th March 1813, by the judgment of the House of Lords, 10th May 1816, by the judgments of the Court of Session, 21st May 1816 and the 4th of March and 2d December 1817, by the judgment of the House of Lords, 10th July 1819, and by the extracted decreet of the Court of Session, 7th March 1820, all rights and interest which the pursuer claims under the present summons of reduction and declarator are totally excluded, and the subject matter of this action is res judicata by the judgments above referred to; therefore assoilzies the defender from this action, and decerns.”
To this judgment the First Division of the Court adhered on the 1st June 1824.
The appellant having appealed, the House of Lords, (26th May 1826,) pronounced this judgment:—
“After hearing counsel on Friday the 5th day of this instant May, upon the petition and appeal of William Maule, Esq., residing in Edinburgh, son and heir of the late Lieutenant Thomas Maule, complaining of three interlocutors of the Lord Ordinary in Scotland, of the 5th and 26th of June and 12th November 1823, and also of an interlocutor of the Lords of Session there, of the First Division, of the 1st of June 1824, and praying that the same might be reversed, varied, or altered, so far as complained of, or that the appellant might have such relief in the premises as to this House, in their Lordships great wisdom, should seem
Page: 598↓
meet; as also upon the joint and several answers for the Honourable William Ramsay Maule of Panmure, and the Right Honourable the Earl of Dalhousie, put in to the said appeal, and due consideration had this day of what was offered on either side in this cause;—It is ordered and adjudged by the Lords spiritual and temporal, in Parliament assembled, That the interlocutors complained of in the said appeal be and the same are hereby affirmed, with respect to the estates of Kellie and Ballumbie, and the bond for 9,000 l. in the said interlocutors mentioned, so far as the said interlocutors find that all right and interest in the said estates and bond, which the appellant claimed under the summons of reduction and declarator in the said interlocutors mentioned, were totally excluded, and the subject matter of the action then before the Court as to such estates and bond was res judicata by the judgment contained in the decreet of the Court of Session of the 5th of March 1782 in the said interlocutors mentioned, inasmuch as it appears to their Lordships that it was not competent to the appellant, by the summons of reduction and declarator in the said interlocutors mentioned, to impeach such decreet of the 5th of March 1782, so far as the same respected such estates and bond, and such decreet has not been impeached by reclaiming petition or appeal, or any other proceeding competent to impeach the same: And it is further ordered and adjudged, That the interlocutors complained of be and the same are hereby reversed, so far as the same find that all right and interest which the appellant claims in the leases of Brechin and Panmure under the summons of reduction and Page: 599↓
declarator in the said interlocutors mentioned were totally excluded, and that the subject matter of the action then in question touching such leases was res judicata by all the several judgments referred to in the interlocutors complained of; inasmuch as the said decreet of the Court of Session of the 5th of March 1782, instead of excluding, expressly affirmed the title under which the appellant claimed such leases, and the judgment of this House of the 10th of July 1819, in the said interlocutors mentioned, expressly left all questions open to both parties with respect to the said leases, notwithstanding such judgment or any of the proceedings in the Court of Session to which such judgment referred, such judgment of this House having declared that, under the circumstances of the case, the said decreet of the 5th of March 1782 was not to be considered as final and conclusive against the respondent with respect to such leases; and having therefore, as to so much of the appellant's action of declarator and reduction then before the House as sought a declaration of the rights of the appellant to such leases, founded on the said decreet of the 5th of March 1782, affirmed the interlocutor of the 2d of December 1817 then complained of, but having also expressly declared, that the affirmance of such interlocutor by this House was without prejudice to any question between the parties in any other action touching any property comprised in the deeds of taillie therein mentioned; the intent and meaning of the whole of such judgment being to leave all questions respecting the right to the said leases, as well as to the rest of the property comprised in the deeds of taillie therein mentioned, open to be discussed in such Page: 600↓
manner as the same might be properly discussed in any future proceeding properly instituted for that purpose: But as it appears that the Court of Session, in pronouncing the interlocutors complained of, have not entered into any question touching the right to the said leases, except the question, whether, by the several judgments in the said interlocutors mentioned, all right and interest which the appellant claimed under the summons of reduction and declarator then before the Court were totally excluded, and whether, therefore, the subject matter of that action respecting such leases was res judicata by the judgments referred to in such interlocutors, so that the right of the appellant to the benefit of such leases has not been properly discussed in the action of reduction and declarator then before the said Court, according to the reservation contained in the judgment of this House of the 10th July 1819, and the true intent and meaning of that judgment,—it is further ordered, That this cause be referred back to the Court of Session, so far as the same respects the right and title to the said leases; and that the said Court do proceed therein in such manner as shall be consistent with this judgment and with the former judgments of this House, and as shall be just.” *
_________________ Footnote _________________
* Before this judgment was pronounced, the respondent had entered a petition of appeal against the interlocutor of 1782, on which this deliverance was issued on report from the Appeal Committee:—
“The Earl of Shaftesbury reported from the Lords Committee appointed to consider of the causes in which prints of the appellants and respondents cases, now depending in this House, in matters of appeals and writs of error, have not been delivered pursuant to the standing orders of this House, and to report to the House; and to whom was referred a petition of William Maule, Esq., praying their Lordships to receive his petition of appeal against an interlocutor of the 1st March 1782, pronounced
Page: 601↓
In the month of August thereafter the respondent instituted an action of reduction improbation and declarator against the appellant and the other heirs of entail, setting forth the proceedings, and particularly the last judgment of the House of Lords; and that “a proper and suitable mode of impeaching the said judgment of our said Lords of 5th March 1782, so far as regards the lands and baronies, and sum of 9,000
l. aforesaid, and of obtaining redress against the antecedent and posterior acts and deeds of the defenders and their authors, being by the process of reduction, declarator, and other conclusions after written.” Therefore he called for exhibition and reduction of the decree pronounced upon the 5th day of March 1782, with the grounds and warrants on which the said decree proceeded; and also the whole of the respondent's titles from 1734 to the lands of Kelly and Ballumbie, and the bond for 9,000
l. His main reason for reduction of the decree of 1782 was, that during the whole period of the proceedings he was in
_________________ Footnote _________________ by the Court of Session, in a competition between Thomas Maule on the one part, and the late Earl of Dalhousie and the Honourable William Ramsay Maule on the other part; that the Committee had met and considered the petition of William Maule, Esq., praying their Lordships to receive, under the circumstances stated in the said petition, his petition of appeal against an interlocutor of the Court of Session, dated the 1st March 1782, pronounced in a competition between Thomas Maule, the petitioner's father, on the one part, and the late George Earl of Dalhousie and the Honourable William Ramsay Maule, on the other part, and thereby permit the petitioner to obtain a discussion of his claims, which were locked up by a compromise to which he was made a party when a minor, and which he has now reduced; and the said petitioner being in attendance, did not insist upon the prayer of his said petition, but prayed their Lordships leave to withdraw the same; and the Committee are of opinion, that the said petitioner should be allowed to withdraw his said petition as desired; which report, being read by the clerk, was agreed to by the House, and ordered accordingly,”
Page: 602↓
In defence the appellant produced the extracted decree of 1782 as sufficient to establish a plea in defence of res judicata, and to exclude the respondent's title to reduce the other deeds called for; and he maintained that, until the defence of res judicata was overruled, he was not bound to make any further production.
Lord Newton pronounced this interlocutor on the 23d December 1826:—
“Having considered the summons and defences, and heard parties procurators, Finds that, in order to satisfy the production, it is not sufficient for the defender to produce the decree of the Court of Session of 1st March 1782, as excluding, while unreduced, the pursuer's title to call for the other writs under reduction; therefore repels the preliminary defence to the production of the said writs, and decerns.
Note.—The Lord Ordinary is quite aware that the pursuer must succeed in reducing the decree before he can be heard to challenge the other deeds called for; but the necessity of following this order does not appear to justify the defender's refusal to satisfy the production by producing the whole. In actions of this nature, where a series of titles are challenged,
Page: 603↓
the validity of the later ones generally depends upon that of the earlier; but the defender is not, on this account, allowed to content himself at first with producing a part. The case of Irvine of Drum against the Earl of Aberdeen, as decided in the House of Lords 2d April 1770, founded on by the pursuer, seems very much in point. Besides, the form of proceeding contended for by the defender seems inconsistent with that required by the Act of 6 Geo. 4. cap. 120., as it would be necessary to receive peremptory defences, and to make up and close the record, in order to dispose of the decree 1782, while, in the event of this being reduced, a further set of defences would need to be given in, and a second record to be made up in reference to the other deeds. Now, although, from the peculiar nature of actions of reduction, dilatory defences may be lodged and considered separately, there is no reason why the whole peremptory defences should not be stated at once, in terms of the 2d section of the act.”
The respondent having reclaimed, the First Division of the Court, on the 31st January 1827, pronounced this interlocutor:—
“The Lords having resumed the consideration of this note, and heard the counsel for the parties thereon, they alter the interlocutor of the Lord Ordinary complained of, and remit to his Lordship to hear parties upon the reasons of reduction, and the defences arising out of the production of the decree of the 5th March 1782, and to proceed further as to his Lordship shall seem proper; but sist process in the meantime relative to the production of the writings called for other than the said decree already produced, and until the reduction of the
Page: 604↓
same; and further find the defender not entitled to the expenses of the present discussion.”
A record having been closed, and the case having come before Lord Moncrieff, he ordered the question to be argued in cases, which he reported to the Court, accompanied by this note:—
“It is impossible for the Lord Ordinary not to feel that a considerable proportion of the case given in for the pursuer is occupied with matter which, in a correct view of the state of the cause, is irrelevant to the proper question at issue. The pursuer undisguisedly avows, that he is discussing precisely the question, whether the decree of 1782 was right upon its merits or not? After the deliberate judgment of the Court, of 31st January 1827, sisting process in regard to the validity of the title deeds by which the defender holds the estates, the Lord Ordinary cannot think that this is a correct proceeding; for the merits of the question as to the validity of those title deeds are in a great measure, if not absolutely, the same with the merits of the questions involved in the decree 1782; and, therefore, all discussion of that question seems to be excluded, until the decrees as res judicata shall be taken out of the way.
The pursuer maintains indeed, that, in insisting for reduction of the decree on the ground that it was a decree in his absence, and on minority and lesion, he is entitled and bound to show that it was erroneous in itself, and that he suffered lesion by it. But there is manifest fallacy in this reasoning. The question is, whether the decree is to stand as res judicata of the matters determined by it or not? Unless relevant grounds be made out for showing that it does not constitute
Page: 605↓
res judicata, it is incompetent to discuss the question which under it is finally and irreversibly determined. But if good grounds be shown for finding that it is not res judicata, the decree may be reduced to this effect; and then, but then only, the pursuer will be entitled to try the question anew, in the same manner as if that decree had not been pronounced. It is true that a party who brings a reduction of a decree pronounced in absence may be called upon, after he has established that it is a decree in absence against which he is entitled to be reponed, to show that the decree is erroneous on its merits, before he can obtain either absolvitor or decree in his own favour; because all that he is entitled to is, to be placed in the same situation in which he was before the decree was pronounced. But the point which the pursuer has here to prove is the preliminary point, that this decree is liable to reduction at his instance as a decree in absence. Until he establishes this, any discussion of the merits of it is incompetent. If he establishes it, the whole merits will be open to him, because the plea of res judicata will then be repelled. In the same manner, when the pursuer pleads minority and lesion, he is entitled to assume the lesion by the facts of his being deprived of the estate; and, though he may also assume in argument that he is deprived of it by an erroneous judgment, his opponent is not bound to discuss with him the question, whether it was erroneous, or pronounced according to a just view of the law, until it be first determined that there is a competent and relevant plea of minority, which shall have the effect of preventing that decree itself Page: 606↓
from standing as a final determination of the question. The Lord Ordinary is therefore humbly of opinion, that the manner in which the pursuer has treated the case in the present state of the process is very incorrect, and may very possibly produce confusion in the proceedings.
On the merits of the only question really at issue, the Lord Ordinary shall only make a few remarks.
1. He is of opinion that the decree of 1782 cannot be considered as a decree in absence. The pursuer seems to grant that the question which was there tried might have been effectually tried in the competition with Lieutenant Thomas Maule, the immediate heir of entail, alone, and that a judgment against him (laying aside the question as to the effect of the decree arbitral) would have been effectual against the pursuer. But the question was tried in foro contentioso with Lieutenant Thomas Maule, and as to him it was no decree in absence. The pursuer was also called in the action of reduction, and it is said to be a decree in absence against him, because no tutor ad litem was appointed. But, whether his being so called can alter the effect in foro with the proper party or not, (and the Lord Ordinary does not think it can alter it,) there is no doubt that appearance was made for the pursuer and his administrator in law; and as there was then at least no adverse interest between him and his father, there was no room for the appointment of a tutor ad litem; and such an appointment, it is thought, would have been altogether incompetent. A decree which was obtained on full
Page: 607↓
discussion by the first counsel at the bar appearing for both these parties can never be a decree in absence with regard to either of them, whatever other objections it may be liable to as forming res judicata. There is no room in the present case for the principle adopted in the case of Sheuchan; and to apply it, indeed, to such a case, would be to hold that the father can in no case act effectually as the tutor of his son. 2. The Lord Ordinary is of opinion, that the plea of minority and lesion is equally inadmissible; for, 1, The pursuer brought no reduction within the quadriennium utile, to which the law has expressly confined the rights of a minor to complain on this ground of acts done in his minority. But, 2, The thing which he has to set aside is a decree of this Court, on trial of a question of law; and the Lord Ordinary is not aware that such a decree in foro is liable to reduction on minority and lesion, without some other ground of objection to it than merely that the party says that he will now show that it ought to have been different, the facts and the law remaining exactly as they were, and where it is not stated that the proper allegations in fact and law were not made. See Ersk. 1. 7. 38.
3. The pursuer, however, has another view of his case. The judgment of the Court in 1782 was subject to appeal; but no appeal was entered. The pursuer says that his father, Thomas Maule, abandoned his right of appeal by a collusive compromise for a sum of money; and he infers that therefore the judgment of the Court ought not to operate as res judicata against the other heirs of entail. This
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plea is to the point, whether relevant or well founded or not; but it ought not to be mixed with questions about the pursuer's personal connexion with the decree arbitral, or its effects against him as a decree or agreement. Supposing it not to affect him in any way, the point which he has to make out is, that, supposing that the judgment of the Court in foro would have been res judicata if Lieutenant Maule had simply acquiesced in it without appealing, the effect of it in this respect is destroyed by the compromise of the suit. And it will be necessary for him to satisfy the Court, both that it prevented the judgment from becoming final at the time, and that he is not barred from now complaining of it by not having taken his remedy in due time; for the point stated by the defender is certainly material, that the pursuer brought no action for reducing the decree, not only till many years after he was of age, but till long after he raised his action for reducing the decree arbitral, and even more than five years after that decree was finally reduced. This part of the case appears to involve considerations of very great importance to the law. The Lord Ordinary doubts whether, from the very singular course which the pleadings have taken in these papers, the arguments of the parties sufficiently meet one another with regard to it. But perhaps it may appear to the Court that there is enough for the decision of the question. The Lord Ordinary has thought it his duty to frame these notes, merely in order to show where, in his humble opinion, the merits of the case hinge. The Court will have at the same time to consider the effect of the judgment of
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the House of Lords of 26th May 1826, in regard to this question of res judicata.”
The Court, after allowing the parties to lodge additional cases, remitted them for the consideration of the other Judges, who delivered the following opinions:—
Lords Justice Clerk,
The present question is, whether the decree thus challenged does or does not constitute res judicata, to the effect of excluding all consideration of the questions which were decided by it? or, whether any relevant grounds have been shown for reducing it after so long a period, so as to lay open the whole merits of those questions regarding the validity of the defender's title deeds.
We are clearly of opinion, that, in this state of the question, it is altogether incompetent to enter at all into the merits of the judgment pronounced by the Court in 1782; and that the question, whether the decree is res judicata or not, is a preliminary question, which must depend on other matters of fact and law. For unless relevant grounds have been shown for setting aside that decree as a decree legally pronounced, or for opening it up as not final, it must be considered
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The facts on which the question, whether this decree constitutes res judicata or not, depends, are not very numerous, and are not involved in any perplexity.
The pursuer founds his title in the present action on certain deeds of entail executed in 1730, under which he says his father, Lieutenant Thomas Maule, was the immediate heir in the estates of Kelly and Ballumbie on the death of the Earl of Panmure in 1781. Some proceedings had been taken before the death of Lord Panmure; and, in particular, Lord Panmure had brought a declarator against Lieutenant Thomas Maule, to have it found that he had an unlimited right to the estates, and that the entails were not binding on him; and separately, a reduction for setting aside those deeds, in which the present pursuer, as well as his father, was called as a party. After Lord Panmure's death, the question as to the rights to these estates was further raised; first, by a reduction at Lieutenant Maule's instance against Lord Dalhousie and the present defender; and, secondly, by a competition of brieves between Lieutenant Maule on the one part, and Lord Dalhousie as the defender's administrator in law on the other. These various processes having been conjoined, appearance was made for all the parties under them; and there is no doubt that the entire question as to the validity and subsistence of the entails, and as to the validity of the defender's titles as opposed to them, was fully discussed by the first counsel then at the bar, and was in all respects aptly and legally brought to issue, and decided by the Court in favour of the defender.
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The same interlocutor found, that Lieutenant Maule had right to certain leases of the parks of Panmure and Brechin in virtue of separate entails applicable to them. And against this judgment Lord Dalhousie entered an appeal to the House of Lords.
A transaction was then entered into in the form of a submission and decree arbitral, by which Lieutenant Maule, for himself and his son, surrendered his right by this judgment as to the leases, and became bound not to enter a cross appeal against the judgment regarding the estates; and Lord Dalhousie, for himself and the defender, became bound to pay a sum of 3,500 l. to be settled in a particular way. That money was paid or invested as agreed upon.
The pursuer was served heir to his father, came of full age, and, for many years after that event, received the interest of the money invested, without challenging the decree arbitral or raising any doubt concerning the conclusiveness of the decree in 1782 as to the estates.
In 1810 he brought a reduction of the decree arbitral on various grounds, to which it is unnecessary to advert. As far as we have seen, the single ground on which the House of Lords ultimately proceeded was, that from the terms of the deed itself it appeared that it was not a decree arbitral, but merely a form by which Lord Dalhousie and Lieutenant Maule made an agreement between themselves. This first action, concluding for reduction of the decree arbitral, related to the leases alone; and the summons contained further conclusions, to have it found that the pursuer had right to these leases, and for removing against the defender.
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The Court by a majority assoilzied the defender. But it is believed, that even those who differed from that judgment were then of opinion, that, though the decreet arbitral were set aside at his instance, the effect could only be to place the defender in the same situation in which he stood before it was pronounced.
On appeal the House of Lords found, that the submission and decree arbitral was only a form adopted by which an agreement between Thomas Maule and Lord Dalhousie was concluded, and remitted the cause.
The Court afterwards pronounced a judgment in general terms sustaining the defences, though there is no doubt that the whole merits of the cause had been pleaded, and were intended to be decided, on the footing of the previous judgment of the House of Lords.
On a second appeal the House of Lords reversed the interlocutor (1819), so far as was thought inconsistent with that judgment, and sustained the defences generally; and ordered, that the decree arbitral should be reduced “as a decree arbitral affecting any rights of the appellant.” It declared, that the judgment of the 1st March 1782 was not to be considered as final and conclusive against the respondent with respect to the leases; and therefore, as to so much of the pursuer's action as sought a declaration of his rights to the leases, affirmed the judgment, without prejudice to any question between parties in any other action as to any other property comprised in the deeds of taillie mentioned.
The pursuer holds this judgment to have been a
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But, apparently in consequence of the finding of the House of Lords, that the decree 1782 was not conclusive against the defender as to the leases, the pursuer now took up the idea that it could not be conclusive as to him with regard to the estates. We are of opinion, that there is no correct analogy between the two things; but, if there were a correct analogy, the pursuer does not appear to have availed himself of it in a competent manner.
He did not attempt to enter any appeal to the House of Lords at this time against the judgment in 1782, neither did he bring any reduction of it; but he brought before the First Division of the Court simply an action founding on the old entails, and demanding reduction of those title deeds which had been solemnly adjudged to be valid by that decree. The defence stated was res judicata, which was sustained by the Court.
On a third appeal the House of Lords pronounced
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This appears to us to have been a conclusive judgment on the case as it stood before the House of Lords. Neither do we find any reservation in it. It seems just to determine the point thus: that the pursuer, not having taken any competent form of impeaching the decree 1782, the House then held that decree to be res judicata to exclude the claim made by him in the action to the estates of Kelly and Ballumbie.
The pursuer, however, now raised the present action for reducing the decree 1782, at the distance of forty-four years from its date. The nature of the
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In this state of the case, we are humbly of opinion that the decree 1782 does constitute res judicata against the pursuer in the present action.
It is evident that the decree 1782 must be considered as res judicata, unless the pursuer has shown legal grounds for impeaching it as such. It was pronounced in a regular process, competent for the decision of the question, fairly conducted, upon full argument, and by the competent tribunal. It was not impeached by reclaiming petition nor by appeal; and forty-four years went over it before this reduction was brought. All these points are clear. But the pursuer maintains various grounds of reduction.
1. He says that it was a decree in absence as to him. We are of opinion, that it was not a decree in absence; and that, though it had been so, the plea is irrelevant. The pursuer was a party to the suit by his administrator in law having been called in one of the actions which was conjoined with the rest; the merits of the case were fully pleaded in his behalf, the interest of his father and himself precisely coinciding; and we are of opinion, that, in such circumstances, there was no necessity for the appointment of a tutor ad litem, and there would have been no competency in such a measure. But, at any rate, we are clearly of opinion, that the plea is irrelevant. The question was, whether the entails were subsisting? Thomas Maule was the immediate heir of entail. He undoubtedly discussed the question in foro contentioso; and we are of opinion, that such a judgment pronounced causa cognita against the immediate heir of
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2. He pleads minority and lesion. We are of opinion that this plea is not well founded. The privilege of a minor to bring such a reduction must be exercised within the quadriennium utile, which has not been done in this case. Even if this rule could be changed by the pursuer's allegation of his ignorance of the nature of the decree arbitral, (of which, however, we have seen no evidence,) he must at least have been bound to bring the action as soon as he knew the facts. But neither was this done. We further entertain great doubt whether this ground of reduction could be applied to the effect of reducing a decree of this Court in foro contentioso, even if the pursuer had been the primary or the only party to it. But we think it very clear that it is altogether inadmissible as a ground for reducing a decree which was competently pronounced against another party who was the first heir of entail fully in titulo to try the question with effect, and who was of full age.
3. The pursuer maintains, that Thomas Maule having by the decree arbitral bound himself and the pursuer not to enter a cross appeal to the House of Lords against the judgment regarding the estates, the effect of this must be to take away the operation of the judgment as res judicata, and to entitle him even now to reduce it.
This is the only point in which we think that there is any difficulty in the case. But we are of opinion that the plea is not solid.
The decree arbitral has been found to have been
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But the position of the parties with regard to the estates was and is totally different. As to them the defender held the judgment of the Court. If Thomas Maule chose to acquiesce in the judgment he had a right to do so. If he had appealed, and abandoned the appeal, he had a right to do so. Neither could he have challenged any agreement for himself, engaging
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This view of the dissimilarity of the two cases is not removed by the circumstance that, by the decree arbitral, Thomas Maule renounced, for himself and the pursuer, the right to enter a cross appeal. If this had been thought to make the cases parallel, the pursuer must have been admitted at once to impeach the original merits of the decree in 1782. But, beyond all doubt, the House of Lords have expressly decided the reverse; and as that House has definitively determined that the cases are not parallel, we humbly think that it is now incompetent for the pursuer to maintain, and would be incompetent for us to hold,
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In the case of Porterfield, lately before the Court, the question was fully tried by the late Sir Michael Shaw Stewart; and after several judgments had been pronounced, and the case was final in this Court, he intimated in writing to his opponent, Mr. Corbet Porterfield, that he was satisfied with the trial of the case, and did not intend to appeal, and gave up the benefit of an agreement by which the expenses of both parties were to be paid from the rents till a final judgment in House of Lords. This did not interfere with the right of any other heir of entail to appeal; and the next heir has done so. But if no appeal had been entered within the period of five years there can be no doubt, we apprehend, that the judgment of this Court would have been res judicata against all parties whatever.
The question here is, whether the case is made different by the circumstance of the pursuer having been made a party to the submission. And we can very
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The pursuer, however, says further, that he waited till the decree arbitral should be reduced. It may well be doubted whether any party can be entitled to allege such a thing as an excuse for not exercising a right claimed as matter of equity as soon as he himself believed that no legal obstacle could stand against him. But supposing even this to be overcome, the decree arbitral was reduced in 1819. Still there was no attempt to challenge the judgment of 1782. The pursuer, indeed, brought an action claiming the estates. He was met by the plea of res judicata, which gave him fair warning. The Court found it to be res judicata, which should still more have put him upon his guard. The House of Lords, in 1826, affirmed the judgment; and it was only after this that the present action was raised.
By that judgment the decree 1782 stands clearly found to be res judicata, excluding the pursuer's claim to these estates. On what ground then is it to be overcome, in regard particularly to the last period from 1819 to 1826? The pursuer has nothing to state but this, that he acted under the impression, that because when he challenged the decree arbitral as to the leases the pursuer was admitted to defend his titles by trying the merits of the judgment regarding them, without bringing any reduction, the pursuer should be equally entitled to challenge the judgment as to the estates without a reduction; and that
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The case of the pursuer, therefore, against the plea of res judicata appears to us to consist in a series of excuses for not having done that which he was bound by law to do in order to preserve his right to complain of the judgment. The case is no doubt special; but we cannot avoid looking at the very long period which has elapsed between the date of the decree and the action for reducing it. We know of no similar case in which a decree solemnly pronounced in foro has been allowed to be opened up at so great a distance of time. And as it certainly cannot be held that, under any of the peculiar features of this case, the pursuer's right to challenge became absolutely indefinite as to time, we are humbly of
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“
All those actions were conjoined, and on the 5th of March 1782 the Court of Session pronounced an interlocutor, by which they decided in favour of the defender as to the estates of Kellie and Ballumbie and the bond for 9,000 l., and in favour of Thomas Maule as to the leases. Before that interlocutor became final the defender and his administrator in law entered an appeal to the House of Lords, in so far as regarded the leases; and it appears that the counsel for Thomas Maule were preparing to
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The pursuer having survived his father, and attained the age of majority, received for several years the interest of the trust funds in the belief that the submission was regular, and the decree arbitral effectual. But having come to the knowledge of the previous agreement, he brought an action concluding for reduction of the decree arbitral, for declaring his right to the leases, and for removing the defender from the subjects held under them.
The Court of Session (9th March 1813) assoilzied the defender. The House of Lords (10th May 1816), on appeal, remitted for reconsideration, with a finding, that the submission and decree arbitral were not
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The cause came back to the Court of Session, and the pursuer (5th April 1821) raised a new action, in which he claimed not only the leases, but also the estates of Kelly and Ballumbie and the bond. It was pleaded in defence, first, that although the transaction in 1782 had been reduced as a decree arbitral, it was valid, notwithstanding, as an agreement. Second, that as the interlocutor of the Court of Session in 1782, not having been brought under review either by reclaiming petition or appeal, had become final, and as it never had been challenged by reduction, it formed a res judicata against the pursuer as to the estates and the bond. Both these pleas were sustained, as appears from the report of the case (1st of June 1824), and the defender was again assoilzied.
A third appeal was entered; and it is material to consider the effect of the judgment (26th May 1826) pronounced upon it. First, the interlocutor of the Court of Session was affirmed as to the estates and the bond, on the ground that it was not competent to impeach the interlocutor of 1782 under the summons of reduction and declarator then before the
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The pursuer raised a new action (18th August 1826), concluding for the first time for reduction of the decree of the Court in 1782, by virtue of the reservation; and also for reduction of the deeds executed by Lord Panmure, relative to the estates and the bond which had been the subject of the former reduction raised in 1821. The Lord Ordinary appointed the production to be satisfied as to both; but the Court (31st January 1827) recalled that interlocutor, and limited the production to the extracted decree 1782. The only question, therefore, at present is, Whether that interlocutor can be set aside, to the effect of allowing parties to try the merits of the question as to the validity of the entails? or whether, on the contrary, it forms a res judicata between the parties, unimpeachable on any of the grounds stated in the pleadings?
We agree with the Lord Ordinary that a great
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Secondly. Before the interlocutor 1782 became final the defender had appealed against it to the House of Lords, and the pursuer's father was preparing
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On the other hand, it is equally manifest, that though the transaction was reduced, both as a decree arbitral and an agreement, the interlocutor of the Court remained a res judicata against the pursuer as to the entails and the bond. The time for reclaiming,
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For these reasons we are of opinion that the right of restitution against the interlocutor of the Court in 1782 is mutual; and as it formed no res judicata in favour of the pursuer, neither can it form a res judicata against him.
It remains to be considered, whether this opinion be in conformity with the judgments of the House of Lords already pronounced, and obligatory upon the parties. And here it is manifest that the judgment pronounced in 1819, when Lord Eldon presided, proceeds on the principle of mutual restitution. While
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The judgment pronounced in 1826, when Lord Gifford presided, is equally decisive. It is true that the House of Lords, on the motion of his Lordship, affirmed the interlocutor of the Court below, as to the estates and the bond in the action then before him, on the ground that the decree 1782 could not be impeached in that action in which it had not been brought under reduction, and that it had not been impeached by reclaiming petition, appeal, or any other competent proceeding; but the affirmance is expressly qualified with a declaration that the effect of the preceding judgment in 1819 was to leave open all questions, not only as to the leases, but as to the other property comprehended in the taillie,—that is, the estates and the bond,—to be discussed in such manner as the same might be properly discussed in any future proceeding raised for that purpose. Now, since reclaiming petition and appeal are incompetent, the only proceeding in which the question as to the estates and bond can be properly discussed is a reduction; the action which accordingly has been brought.
_________________ Footnote _________________
1 Speech of Lord Eldon, 28th June 1819.
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It is said that the pursuer is barred from insisting in this action by his delay, as he challenged the decree arbitral in the year 1810, and allowed seventeen years to elapse afterwards before the present summons was executed. We do not think that the pursuer is to blame for this delay, and far less that it can operate as a bar to his action. On the same ground that the defender was allowed without a reduction to discuss his right to the leases, notwithstanding the interlocutor of 1782, in point of form, was final, the pursuer had reason to believe that he would be allowed, without a reduction, to discuss his right to the estates and the bond, the same interlocutor 1782 having been declared to be equally open as to both parties, and in reference to all the property contained in the entails. It was not until the date of the judgment 1826 that he learned that this form, dispensed with in the case of the defender, was deemed requisite in his case; and, however well founded the distinction may be, it certainly was not so obvious that the fault of overlooking it should be visited with a penalty so severe.
The last point for consideration is the plea of minority and lesion, on which the interlocutor 1782 is challenged. It is possible that both that interlocutor and the decree arbitral or agreement might at one time have been brought under reduction on that ground; but the quadriennium utile having long since elapsed, minority and lesion per se can no longer be competently pleaded to that effect either against the one or the other. The only plausible way of putting the argument is, that the pursuer, being deceived by the collusive decree arbitral, refrained
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It is said that a distinction exists between the case of the defender and the pursuer in reference to the interlocutor 1782, because the defender had actually entered his appeal againt it, while Thomas Maule had not entered a cross appeal, either on his own part, or on that of his son, that it is not presumable he would have done so, and if he had not, the interlocutor would have been final, independently of the agreement. We think it a sufficient answer to this remark, that Thomas Maule, having the power to appeal, became bound by the agreement not to appeal. In hoc statu, there is just as much reason to presume that the defender would have withdrawn his appeal after it was entered, as that Thomas Maule would
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We come to the conclusion, therefore, that the interlocutor 1782 ought not to be held as a res judicata against the pursuer; and, there being no title therefore to exclude, that the defender should be ordained to satisfy the whole production, with a view to the merits being discussed.”
But those actions have been so complicated, and those judgments, both in this Court and in the House of Lords, have been so various, that it is a matter of some difficulty to ascertain, separately, what points were fixed by each successive judgment, and of still greater to seize their combined effect; so that it is with some diffidence I give this opinion, founded as it is on a view of the previous procedure, in taking which it is not impossible that particulars materially affecting the result may have escaped my attention.
The decree now sought to be reduced formed part of a judgment pronounced by the Court of Session on
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The only one of these actions in which there is any pretence for considering the present pursuer as directly a party was that originally raised by Lord Panmure, and afterwards insisted in by the present defender and his administrator in law for reducing the entails of the lands of Kelly and Ballumbie, of the bond for 9,000 l., and of the leases of Brechin and Panmure, founded on by Lieutenant Maule. But it may be observed, in the first place, that though that summons seems to have been served personally on the present pursuer it does not contain his name. It calls merely Lieutenant Maule, for himself, and as administrator for his children. And, secondly, I understand that in none of the conjoined actions was there any appearance by Lieutenant Maule, as administrator for his children. By the judgment pronounced in these conjoined actions, the Court sustained Lieutenant Maule's claim to the leases of Brechin and Panmure, but rejected his claim for Kelly and Ballumbie and the bond for 9,000 l.
While it was competent for either party to reclaim against that judgment, and certainly while it was competent for either party to appeal, the litigation was closed by an agreement between Lieutenant Maule and the defender and his administrator in law, afterwards embodied in the form of a submission and decree arbitral, to which the defender, then a pupil, was made nominatim a party. By that transaction it was determined, first, that the judgment of the Court in Lieutenant Maule's favour, respecting
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This transaction stood unchallenged till the year 1810, when the pursuer having discovered that the transaction, though apparently a submission and decree arbitral, was substantially an agreement between the defender and his father Lieutenant Maule, raised an action for setting aside that submission and decree arbitral, and the service which he had obtained under it while he was in ignorance of the true nature of the transaction. That summons called merely for production of those documents in order that they might be reduced; and upon that reduction founded the conclusion, that the defender should remove from the houses and parks of Brechin and Panmure, being the subjects contained in the entailed leases. It contained no conclusion whatever concerning the estates of Kelly and Ballumbie, and the 9,000 l. bond. And it is easy to see, from the nature of the discussion which afterwards took place, why it was so limited. It was evidently founded on the assumption, that by the reduction of the
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Now, it appears to me, that this last was the only point which was truly settled by the final judgment of the House of Lords, in this action, in the year 1819. In the first appeal, in 1816, the House of Lords had found, “that the submission and decree arbitral ought not to be considered as being or having in law the effect of such, but as a form adopted, in which an
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This view, it will be observed, was indispensable to support the respondent's case on that occasion; for if the pursuer had been properly and distinctly a party in the combined actions in which the judgment respecting the leases was pronounced, the agreement of Lieutenant Maule to renounce the decree would have left it still a good decree available to the pursuer, who, according to the preceding judgment of the House of Lords, was not affected by the submission. On the other hand, if Lieutenant Maule was the only proper party, the reduction of the agreement by the pursuer could not rear up the decree; because, on that supposition, it was a decree passed from by the only party in the suit. It appears to me that this last was the view taken by the House of Lords. They reversed the interlocutor of the Court, “in so far as it is inconsistent with the former order of the House of the 10th of May 1816.” They farther order and adjudge, “that the instrument of the 2d of April 1782 ought to be reduced as a decree arbitral affecting any rights of the appellant.” Next, it is declared, “that under the circumstances of this case, the interlocutor of 1st March 1782 is not to be considered as final and conclusive against the respondent with respect to the leases in question; and therefore, as to so much of the appellant's action of reduction
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After this the pursuer raised his action in 1821, in which he, for the first time, advanced his claims, not only to the leases, but to the estates of Kelly and Ballumbie, and the 9,000 l. bond; and, considering the view hitherto taken by him, this delay is not to be wondered at. His claim hitherto advanced was limited to the leases, because it was bottomed on the assumption that, by the reduction of the decree arbitral, the decree 1782 was restored to operation; a
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In the present action, then, the pursuer has attempted that challenge. In the summons he concludes for the reduction of the decree 1782, as touching the lands and the 9,000 l. bond, as well as of the various titles of the lands founded on by the defender.
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Considering the limitation contained in the interlocutor of Court of the 31st January 1827, I am of opinion, that by far the greater part of the discussion in the pursuer's pleadings are beyond the limits contemplated in that interlocutor. In one sense, no doubt, it may be said that the reduction of a decree involves the merits of that decree, as those merits truly constitute the interest of the party seeking to reduce it. But the interlocutor of the Court, by limiting the production to the decree itself, and sisting process as to the writings, “until reduction of the said decree,” seems to me to have intended to confine the discussion to the point, whether the decree itself formed a title to exclude? In other words, whether or not, under all the circumstances of the case, the pursuer was entitled competently to impeach the decree, so as to reach the merits of the case, of which the discussion was necessarily postponed by sisting the process in regard to the writings involving those merits.
Considering this to be the only point on which I am called upon to give, and have the means of giving, an opinion, that opinion is, that the pursuer is entitled to reduce the decree 1782 in regard to the lands of Kelly and Ballumbie and the 9,000 l. bond, to the effect of being heard on his claims to those subjects.
In forming this opinion, I do not consider it necessary to inquire into the effect of the expiry of the quadriennium utile, or of those circumstances by which that effect may be supposed to have been suspended or excluded. There might have been room for some such inquiry if the decree 1782 had been directly and expressly against the pursuer, called nominatim, and
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In these circumstances it is impossible to hold the decree 1782 as a decree directly and nominatim against the pursuer. Its operations as a res judicata must rest upon a different ground, namely, that though not a decree directly against him, it was a decree effectual against him and the other heirs of entail, inasmuch as it was a decree respecting the validity of entailed rights pronounced in actions maintained by Lieutenant Maule, the party fully vested at the time with those rights. That a decree so pronounced will, in the general case, be held an unchallengeable res judicata, there seems no reason to doubt; but I think that this special case does not admit of the application of that principle.
In this first place, I conceive it to be completely excluded by the option which has been already exercised on the part of the defender in construing the effect of the proceedings in 1782, in so far as they
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Now, though the decree, in so far as it was against Lieutenant Maule, has been found to stand in a different situation in this particular, that it requires to be directly impeached by some substantive procedure, it does appear to me necessarily to follow from the construction put upon the procedure in those combined actions by the defender himself, that the pursuer must be entitled to impeach the decree, so as to be heard upon the merits of the case. The only ground upon which that could be denied is, that the decree was obtained in an action regarding entailed rights against Lieutenant Maule, the heir in whom those rights vested at the time. But that ground is necessarily excluded by the course of pleading adopted, and successfully
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But, secondly, and independently of the ground above mentioned, I am rather inclined to think that the pursuer, an heir of entail, would not have been bound by the legal procedure in question, closed as it was by a transaction with Lieutenant Maule, which has been finally determined not to be effectual against the pursuer. It is true that a judgment obtained respecting entailed rights against the party vested with them at the time is good against the other heirs of entail; but this, of course, involves the assumption that the question has been bona fide litigated by the heir in possession, according to a sound discretion, and upon a fair exercise of those privileges to which, by the rules of litigation, he is entitled. There seems, therefore, no reason to doubt, that if the litigant, in the exercise of that sound discretion, declines, upon judgment being pronounced against him, to bring the case under review by a reclaiming petition or by appeal, the judgment of a Lord Ordinary is not impaired in effect by the failure to bring it under review of the Court, still less is the judgment of the Court invalidated by the circumstance of the unsuccessful party declining to appeal. But it is a very different case indeed, when the heir of entail in possession, litigating in his representative as well as individual character, does, during the dependence of his right to reclaim, or of his right to appeal, make those rights the subject of a transaction with the opposite party, and surrender them for a consideration personal to himself. I should consider it alike dangerous in practice, and contrary
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I am of opinion, then, upon both of these grounds, that the pursuer is entitled to be let into the merits of the case. I have only farther to add, that they appear to me to be proper grounds of reduction; and that the competency of the present procedure, therefore, cannot be affected by the lapse of the period allowed for appeal. In truth, upon the principle adopted in the House of Lords in the judgment 1819, the surrender of the right to appeal by Lieutenant Maule, the only party in the suit, would have been an effectual bar to any other party attempting that mode of review. The true grounds of challenge here are, that the
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On these opinions being laid before their Lordships of the First Division, they gave opinions to the following effect:—
I cannot look at the proceedings in the House of Lords, the judgment in the House of Lords, and, above all, the fatal proceeding on the part of the defender—I say I cannot look upon these, and bring my mind to any other conclusion than that there must be a complete restitutio in integrum. I think it was so understood in the House of Lords, and I cannot interpret their judgment in any other way. I look upon it as a debitum justiciæ to this pursuer;
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Lord President.—“I confess the case strikes me in a very different point of view. I cannot conceive that the question is now open for us. If you will attend to the judgment of the House of Lords, it ends with these words, after affirming the interlocutor of this Court in regard to the leases:
“But without prejudice to any question between the parties in any other action touching any property comprised in the deed of taillie in the pleadings mentioned.”
Then comes the important judgment of the 26th of May 1826, the terms of which it is very particular to attend to. It is in these words:
“It is ordered and adjudged, that the interlocutors complained of be affirmed with respect to the estates of Kelly and Ballumbie and the bond for 9,000 l. in the said interlocutors mentioned, so far as the said interlocutors find that all right and interest in the said estates and bond, which the appellant claimed under the summons of reduction and declarator in the said interlocutors mentioned, are totally excluded, and the subject matter of the action then before the Court
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as to such estate and bond was res judicata by the judgment of the Court of Session of 5th March 1782, in the said interlocutors mentioned; inasmuch as it appears to their Lordships that it was not competent to the appellant, by the summons of reduction and declarator in the said interlocutors mentioned, to impeach such decreet of the 5th of March 1782, so far as the same respected such estates and bond, and such decreet has not been impeached by reclaiming petition or appeal, or any other proceeding competent to impeach the same: And it is further ordered and adjudged, that the interlocutors complained of be and the same are hereby reversed, so far as the same find that all right and interest which the appellant claims of the leases of Brechin and Panmure, under the summons of reduction and declarator in the said interlocutors mentioned, were totally excluded, and that the subject matter of the action then in question touching such leases was res judicata by all the several judgments referred to in the interlocutors complained of.”
Now, if it was the meaning of the House of Lords to find, notwithstanding these separate findings as to the leases and the estate, that every question was still open between the parties, it appears to be the most extraordinary judgment ever pronounced by the House of Lords. They find expressly, with regard to the estates, that there was a res judicata, and they affirm the interlocutors of this Court on that point. But, says the pursuer, they only meant to find that it was a res judicata in so far as it was competent to the appellant in that particular action. But in that view the judgment should have said nothing about res
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I cannot conceive what the judgment of the House of Lords was, if it was not a res judicata. A res judicata means a thing that cannot be touched at all. If it is a res judicata, then it is final to all purposes, and cannot be touched at all. I cannot conceive what could have been the meaning of the House of Lords in positively finding that they affirmed the interlocutor of this Court in so far as we found that the decree in 1782 was a res judicata, unless they meant that it really was a res judicata. I cannot imagine, after that, that it could be the meaning of the House of Lords that there was no res judicata. If such was the meaning of the House of Lords, let them find so. I concur entirely in the opinion expressed by the Lord Justice Clerk.”
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Lord President.—“The judgment must be according to the opinion of the majority: there are eight of the Judges for finding there is no res judicata.”
The Court accordingly, on 5th July 1831, pronounced this judgment:—
“The Lords having resumed consideration of this cause, and advised the same, with the opinions of the consulted Judges, and heard the counsel for the parties, repel the defences of res judicata, and decern; and remit to the Lord Ordinary to ordain the defender to satisfy the production in common form: And the Lords, at the request of the parties, reserve entire the question of expenses; and of consent remit to the Lord Ordinary to call the cause without an hour.”
On a petition by the appellant, leave was granted to him to appeal from the above judgment, and he accordingly entered an appeal.
The arguments of the parties were to the same effect
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The decree of March 1782 must be taken to be a subsisting decree, making the subject matter of this present suit res judicata. “It has not been impeached at the competent time, either by reclaiming petition or appeal,” (I use the language of one of your Lordships judgments,) “or any other proceeding competent to impeach the same.” To which I shall take leave to add, in the words of the learned Lord President, on advising this question, that “if the House of Lords did not thereby mean to treat it as res judicata, it is difficult to understand what they meant.” Let us shortly consider the course of the proceedings, and the grounds upon which it is contended that the decree of 1782 has not the effect of making the matter res judicata. We shall presume, that as long as the decreet arbitral stood in his way, the respondent, and those to whom he succeeded (that is, his father,) could not take any steps for questioning the judgment of 1782. Then observe when that impediment was removed. In 1809 the reduction was brought, and a narrow majority having assoilzied the defender, (that is, supported the decreet arbitral,) your Lordships, upon appeal, took a different view of the submission and decreet, holding, by your judgment of 10th May 1816, that these instruments were “not to be considered as having in law the effect of a submission or decreet arbitral, but only as a form of agreement between the parties.” It is material to observe, that this finding of your Lordships not only seems in itself incapable of any other construction than setting aside the decreet arbitral, but it was so treated by the respondent
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It is fit that we now attend to the judgment of your Lordships in 1819. After setting aside the decreet arbitral, it adds a declaration, “that under the circumstances of this case the interlocutor of 1782 is not to be considered as final with respect to the leases,” and therefore affirms as to those leases; “but without prejudice to any question between the parties in any other action touching any property comprised in the deed of taillie.” As far as this saving clause goes, it rather indicates a leaning against the interlocutor of 1782 being open, excepting in respect of the leases. For if you say a judgment is not final as to one matter, but without prejudice to any question as to another matter, it should seem that you guard yourself against the inference from what you have found respecting the one to what you may be supposed to mean respecting the other,—as if you said, “Mind, when we say the interlocutor is open as to the leases, it does not follow that we mean to say it is also open as to the estates.” But in 1820, when the case went back with this finding of your Lordships, the decreet arbitral was formally reduced, and, as it were, ceased to exist. Did the respondent then proceed? Not to set aside the interlocutor of 1782 on its merits;—he neither tried to reduce it, nor did he appeal from it, nor reclaim against it; but he sued upon the entails, and proceeded against titles alleged to be inconsistent with them, and which your Lordships had sustained. The defence of res judicata was taken, and prevailed; the Court below, by its interlocutors of 5th June 1823, and 1st June 1824, finding that, by the decrees of 1782, 1813, 1816, 1817, 1819, and 1820, the subject matter of the action was
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The manner in which the judgment under consideration, that of May 1826, refers to the leases, and to the finding of the judgment of 1819 upon them, greatly aids the construction I have put upon this judgment of your
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The points attempted to be made, of decree in absence, and reduction ex capite minoritatis, need not be considered at all. They are wholly untenable; and, indeed, respecting them, I perceive no difference of opinion amongst the Learned Judges: all agree in rejecting them. I have also purposely abstained from saying any thing upon the remarks delivered by the two Noble and Learned Lords who advised your Lordships, when the case was before you in 1819 and 1826; because, admitting the account we have of what fell from them to be accurate, it is not fit to construe any judgment by reference to the arguments used in recommending or expounding it. But great respect is undoubtedly due to the opinions of those learned persons, upon any points to which they addressed their minds, and therefore, it would be very proper to avail ourselves of such lights as their remarks might shed on any doubtful parts of the present question, if the force of the judgment pronounced by your Lordships, and which cannot be at all affected either way by their arguments, left us at liberty to consider the points raised as still undecided. In Lord Gifford's argument,
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Upon the whole, I am of opinion that the judgment below cannot stand; and in coming to this opinion, I feel much satisfaction from two considerations: 1st, the great opprobrium will no longer rest upon the administration of the law,—that after the lapse of half a century from a decree in the suit, every thing should still be open between the parties, and a new course of litigation be in reality only beginning; 2dly, that when I look into what can be descried of the respondent's case, behind the bar now raised, and alone now under review, there seems little reason to expect, that, if that bar were removed, and the respondent suffered to question the original judgment upon its merits, he could alter the decision. While, therefore, your Lordships may entertain the reflection, that no substantial case is shut out by your resolution, you have the farther satisfaction of feeling that the claimant, were he allowed to proceed, would, in all probability, end where he now is, after much additional expense, and long protracted delay to himself as well as his adversary. My Lords, in this case, I have said nothing about costs,—of course there can be no costs in the case of a reversal. I have
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The House of Lords ordered and adjudged, That the interlocutor complained of in the said appeal be and the same is hereby reversed: And it is declared, That the defence of res judicata ought to have been sustained: And it is further ordered, That the cause be remitted back to the Lords of the said First Division of the Court of Session to proceed therein in such manner as shall be consistent with this judgment: And it is further declared, That this House does not think fit to make any order respecting the costs of this appeal, and that the question of expenses of process in the said Court of Session is left entire for the discretion of that Court.
Solicitors: Moncreiff, Webster, and Thomson— Richardson and Connell, Solicitors.