Scottish Court of Session Decisions

Subject_1 PROCESS.
Subject_2 SECT. XVI.

Res Judicata. Reclaiming Days.

Millie
v.
Millie

Date: 27 November 1801
Case No. No 318.

How far a decree of court is to be considered as having been pronounced in foro contentioso, so as to authorise the exception of res judicata?

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David Millie, manufacturer in Path-head, died in the year 1795, leaving a son and a daughter. Soon after his death, his daughter, with the concurrence of her husband, raised two actions against her brother, David Millie. The one was a process of reduction of a general disposition and assignation, which had been executed by her father in the year 1791; and she contended, 1mo, That he was not in a situation to manage his own affairs; 2do, That he was barred by the law of legitim from executing such a disposition. The other was an action for the sums to which she was entitled as next of kin to her mother, who had died intestate many years before her father.

These processes came in course before the Lord Ordinary, and the defender was assoilzied 6th June 1797, from the first ground of reduction. With respect to the other, the Lord Ordinary, “before answer, appointed the pursuers to give in a special condescendence of the facts they aver anent the legitim, and the way and manner in which they mean to establish the same.” This appointment was never complied with, nor was any appearance made for the pursuer at the next calling of the cause; and the Lord Ordinary “having then heard the procurator for the defender, in respect the pursuer had failed to give in the condescendence appointed by last interlocutor, assoilzied the defender from the whole remaining conclusions of the libel.” The only further procedure consisted of three short representations upon the part of the pursuer, not upon the merits of the cause, but for the purpose of obtaining delay. These representations were successively refused by the Lord Ordinary.

Some years afterwards, Elizabeth Millie, the original pursuer, raised two fresh actions against her brother. The one was an ordinary action, concluding for payment of L. 15,000, as her share of their father's moveables. The other was a reduction of the settlement which had been executed in 1791; and also of the two decreets of absolvitor, which had been pronounced in the former actions.

In oppositions to these claims, the plea of res judicata was advanced by the defender, who

Pleaded; That these new processes were in fact the same with those from which the defender had been already assoilzied, that the decreets of absolvitor had been pronounced in foro contradictorio, had been allowed to become final, and could not now be brought under review. 1mo, The pursuer's object has been all along the same in these actions,—to reduce her father's settlement that his property might be distributed according to the rules of intestate succession; and the media concludendi are the same also, the reasons of reduction being almost verbatim with those in the former action. They cannot therefore be held to be different processes, Ersk. B. iv. T. 2. § 3. 2do, There can be no other distinction between decrees in foro, and decrees in absence, than that in the one case appearance had been made, and defences proponed for both parties; in the other, for one party only. If a proper act of litiscontestation, or an act before answer, were necessary to constitute a decree in foro, the greatest number of the decrees of Court must be considered as decrees in absence, which would lead to an endless multiplicity of law-suits. The reduction, so far as it proceeded on the head of imbecility, was argued at great length in the former processes; and, with respect to the legitim, the Lord Ordinary pronounced an interlocutor, ordering a condescendence, with which it was the duty of the pursuer to have complied. This brings the case under the provision of the act 1672, c. 16. § 19., and is a good defence in the present action. Accordingly, the plea of res jndicata has been sustained in similar cases; December 1780, Macglashan against Stewart; 1799, Black's Trustees against Laing; 23d November 1789, Douglas against Turnbull.*

Answered; The decree of absolvitor, so far as related to the claim of legitim, passed sine causa cognita, and the utmost effect that can reasonably be given to it, is to subject the pursuer to the expenses already incurred. The order for the condescendence shews, that the Lord Ordinary thought the pursuer's claim relevant, and it would have been immediately complied with, but on account of her total inability, from poverty, to carry on the action. She is not debarred, however, from bringing her claim anew; Erskine, B. 4. T. 2. § 17.; for decrees are not to be considered in foro, without litiscontestation, and there can be no litiscontestation without extracting an act or warrant, by which a proof of special facts is granted to the parties; Ersk. B. 4. T. 1. § 69.; Stair, B. 4. T. 39. § 1. Accordingly, in many cases, where the process had proceeded farther than in this, it has been found that a pursuer was not precluded from having the merits discussed in a subsequent action; March 1583, Knowles contra Irvine, No 235. p. 12125.; 11th February 1541, Town of Selkirk, No 226. p. 12121.; May 20. 1542, Heirs of Innerugie. No 226. p. 12121.; 23d February 1554, Queen contra Lord Caprington, No 230. p. 12123.; February 1583, Lady Lundie contra Gray, No 234. p. 12124.; 1791, Bald contra Simpson, (not reported) Blackstone, B. 3. C. 20. and 21.

The Lord Ordinary found, “That the pursuers are not barred from insisting in the present action of reduction, and renewed claim of legitim,” and repelled the defence of res judicata.

And the Court, upon advising a petition against this interlocutor, with answers, by a considerable majority adhered to the judgment of the Lord Ordinary.

Observed from the Bench; There is no doubt great difficulty in opening up a decree of Court, but there is a supereminent power of equity vested in the Court, which cannot more properly be applied than in a case like this, where the process had been given up through the poverty of the defender. In all such cases, it is the duty of the agent to take measures for having the party

* Not reported. See Appendix.

put upon the poor's roll, to enable them to have the merits of their cause fairly discussed.

Lord Ordinary, Balmuto. A&t. Robertson. Agent, Jo. Tawse. Alt. Oswald. Agent, D. Lister. Clerk, Pringle. Fac. Col. No 6. p. 12.