The Right Honourable John Alexander Earl of Hopetoun, and Others, heritors of the Parish of Kirkliston v. William Ramsay Ramsay, Esq., of Barnton, and Sir James Gibson Craig, of Riccarton, Bart. [1846] UKHL 5_Bell_69

UKHL
The Right Honourable John Alexander Earl of Hopetoun, and Others, heritors of the Parish of Kirkliston v. William Ramsay Ramsay, Esq., of Barnton, and Sir James Gibson Craig, of Riccarton, Bart.
[1846] UKHL 5_Bell_69
The Right Honourable John Alexander Earl of Hopetoun , and Others, heritors of the Parish of Kirkliston, Appellants v. William Ramsay Ramsay , Esq., of Barnton, and Sir James Gibson Craig , of Riccarton, Bart., Respondents

[ 27th March , 1846 .]

Subject_ Res Judicata. — Locality. —Common Agent. —

A decree, in a process of augmentation and locality of stipend, whereby the lands of individual heritors were declared not to be liable, in payment of stipend, as being held cum decimis inclusis , which had been consented to by the common agent, was found to be binding upon the general body of heritors, though the consent was not given with their express authority.In a process of augmentation, modification, and locality of the teinds of the parish of Kirkliston, to which both appellants and respondents had been co-defenders, the respondents gave in minutes claiming exemption from payment of stipend in respect of certain lands, on the authority of a report of subcommissioners in 1629, exempting the lands from valuation, because of the titles, (which, however, were not produced with the report,) and surrendering the teinds of other lands. These minutes were, on the 4th of February, 1831, allowed to be seen by the common agent, who thereafter circulated an interim scheme of the proven rental among the heritors, wherein he did not comprehend the lands of the respondents, but stated that he was satisfied the claim of exemption was well founded, and that he was ready to consent to its being sustained. The Lord Ordinary found that the teinds of the parish amounted to the sum in the scheme of the proven rental, and on the 2nd of July, 1831, pronounced an interlocutor, which as to each of

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“Of consent sustains the claim of decimæ inclusæ decimæ inclusæ in regard to the lands of Hallyards, and ordains the common agent to answer this minute quoad ultra , betwixt and next calling.”
Five years afterwards, while as yet no final decree of locality had been pronounced, the common agent insisted upon the respondents producing their rights to their teinds, in consequence of his having accidentally seen titles upon the Record, which gave him reason to think that the respondents were not entitled to the exemption which had been allowed. And upon their refusing to produce their titles, an action was brought by the common agent, in the name of the appellants, for reducing the interlocutors which have been mentioned. The first ground of reduction, which was followed by others on the merits of the claim to exemption from payment of stipend, but which, in the view taken of the case by the House, it will not be necessary to notice, was in these terms:—
“ Primo . The said interlocutors bear to have been pronounced of consent, but no consent on the part of the pursuers was given to either of these interlocutors.”
The respondents answered this ground of reduction by a plea of res judicata .The Lord Ordinary ( Murray ) repelled this plea and decerned in the reduction, and subjoined to his interlocutor a note which, in regard to this plea, was in these terms:—
“It would be going further than the Court has done in any former case, to exclude an action for reducing an interlocutor pronounced of consent of a common agent in a locality, where no extract has been made.”
The respondents reclaimed to the Court, which, on the 2nd March, 1841, recalled the interlocutor of the Lord Ordinary, “sustained the plea of res judicata , and repelled the reasons of reduction.”

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The appeal was against this interlocutor.Mr. Turner, Mr. H. J. Robertson , and Mr. Anderson , for the Appellants.—A judicial consent in order to be binding must be given by a party having authority to that extent, but a common agent has no such authority. The very history and nature of his office exclude the idea. Formerly the titular prepared the locality, and each heritor had to attend to his own interest in regard to the proportions, according to which an augmentation of stipend was to be allocated. The conflicting views entertained by the different heritors necessarily occasioned great delay, and expense, and much hardship to individual heritors, as each was liable for the whole augmentation, so long as a scheme of locality was not prepared. To remedy this the office of common agent was created; the duty of this officer being to collect together the titles of the different heritors, and after seeing them, to prepare a state of the order and proportions in which the augmentation should be allocated, according to the information which the titles afforded. In all this his office is simply official, more resembling that of an officer of Court than of an agent strictly so called. His duty is to assist the Court in a matter where there must necessarily be a number of conflicting liabilities, by preparing a view of those liabilities, and, at the same time, protecting the parties inter se , from any excess of liability being imposed upon them; but it was never intended that he should have power, nor was it ever supposed that he had power, to bind each heritor as his agent, strictly so called. It could hardly be so, for he is not appointed even by the body of heritors, and still less by the individual heritor whose interests may be the peculiar subject of inquiry. All the power the heritors have in the matter is to meet for the purpose of suggesting a person to be appointed by the Lord Ordinary. In this the voice of the majority prevails, and it may so happen, as to the individual heritor, that the person appointed, was not only

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[ Lord Cottenham .—Who is it that conducts the cause—that represents the heritors in the conduct of the augmentation and locality to its conclusion?]The common agent. In the present instance, if the common agent had insisted upon production of the respondents' titles, and, after seeing them, had, in the scheme of the proven rental, intimated his opinion of the respondents' liability, or freedom from liability, he would have acted within the scope of his duty; but in dispensing with that production he was wanting in the performance of his duty, and in consenting to the interlocutors in question he altogether exceeded its bounds. Instead of protecting the interests of the general body of heritors, he, by consenting to the exemption from liability claimed by the respondents, made a sacrifice of their interests; for, in proportion to the exemption given by the respondents, he necessarily imposed a corresponding liability upon the other heritors.If the common agent had confined himself to his duty it would have been open to the appellants, either to have assented or to have dissented, by objecting either to the scheme of the proven rental or to the scheme of locality; but by consenting to the interlocutor of exemption, he put it beyond their power to help themselves. It is not pretended that he gave the consent by

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The doctrine of res judicata is rested upon this, either that the judge has actually decided the matter in dispute, or that the parties have agreed to take from him a decree, as if he had done so. Both these elements are awanting here. The judge never had the matter even presented to him for his opinion, and the parties did not agree to accept the decision which was given; the common agent had power to present the matter in a shape proper for adjudication, and to take the opinion of the judge upon it, but he had no power to compound or compromise, and still less gratuitously to abandon, the rights of the heritors. Having no power to consent to the interlocutors, no consent was, in fact, given, and they are, in every view, open to reduction.Mr. Solicitor-General and Mr. Mure were heard for the Respondents.Lord Brougham .—My Lords, in this case we have the unanimous judgment of the learned Judges in the Court below, who appear to have paid very great attention to the case, and to have had no doubt whatever upon it, the only appearance of doubt being in the early part of the Lord Justice Clerk's judgment, as reported in 3rd Bell and Murray , where he says that he had the gravest doubts from the beginning. But it turns out that what he means and expresses in courteous language towards the learned Lord Ordinary, whose judgment he is about to reverse, is that he had from the beginning, the gravest doubts of the

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Under these circumstances, I feel no hesitation in expressing my concurrence in the judgment of the Court below; and

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My Lords,the summons sets forth that there was no consent given by the party in the cause. Now, in my humble judgment, it would have been very competent, certainly, in my humble judgment, it would have been almost necessary for the party dealing with a decree, which on the face of it purports to be a decree by consent, to have said that there was no consent by the party, and to traverse the authority of the common agent to adhibit that consent so as to bind the parties, considering that they were dealing with a record, and seeking upon that ground, to reduce the summons; that would have been the fit course to have taken; and why? because, my Lords, it was fit to give the other party an opportunity, by knowing what the ground of contention against him was, to be able to meet that contention. How do I know that he might not have distinctly proved that, in point of fact, there was positive and distinct authority? How do I know but that other matters might have been brought forward, which, at all events, might have cut out of the cause that contention? that was not done, however; all that has been done is to rely on the argument of the want of authority of the common agent, against which I have come to the opinion of the Court below, and consider that there is no ground whatever for the appeal.As to the authority of Lord Stair , I have looked into it, but I do not think it is possible to say that it is law to the extent to which it is pushed, because, says Lord Stair himself, reipublicæ tandem interest ut sit finis litium reipublicæ tandem interest ut sit finis litium . A very, very, lengthened tandem indeed it would be, if it were that length; it might well be said to be too long, if the finis litium were only to be after you have waited 150 years, and no new matter had come ad novitiam . I never heard, by the way of res noviter veniens ad notitiam , ever being pretended to be urged as an argument against a decree, even when a new point of law has been urged, or a new fact not

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Lord Cottenham .—My Lords, on this first point I am of

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Now it is argued at the bar, and admitted on both sides, that the course of proceeding with regard to that interlocutor of 1831, was, that the common agent being appointed, and having done that which he thought right and necessary for informing himself of the rights of the several parties, consented to this interlocutor being made. “The Lord Ordinary, by consent, sustains the claim of decimæ inclusæ decimæ inclusæ ,” as regards certain lands; that is the nature of the interlocutor now sought to be reduced, and the question raised is on the ground that it is stated to be drawn up by consent, whereas the pursuers never did consent. The fact turns out that the common agent who acted did consent—there is no mistake of the officer—there is no false statement of a consent never given, but the case argued at the bar is, that the consent was given by the common agent, who, it is alleged, had no authority to give it.Now, my Lords, I am of opinion that the counsel for the appellant have entirely failed in establishing that proposition. I asked the learned counsel who it was that represented the party in the conduct of the cause, not in examining the locality, not for the purpose of ascertaining in what shares the burden ought to be borne, but who represented the parties in the conduct of the cause, and the answer was, the common agent, as I knew beforehand it must be. That is, the common agent represents the parties, unless the interests are split. Here then, the body of heritors continue to be represented by the common agent; a question arises between that body and certain individuals possessing certain lands, but, as far as the heritors were concerned,

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On the merits, therefore, if the record is sufficient to raise that question, I have no doubt of the appellant having entirely failed in the grounds on which he sought to reduce the interlocutor. But I quite concur in what is thrown out by the noble and learned Lord who first spoke, that this record is very ill adapted to raise that question at all. I give no opinion on that, it is a question not brought regularly before us; but if it be the course of pleading in Scotland, it is, in my opinion, a very imperfect mode of pleading, if, when you seek to set aside a record on some matter dehors the record, not apparent on the face of it, something quite independent of the record, you are not to allege what that matter is, but simply to allege that the pursuers did not consent, and then to support that by going into the legality of the conduct, and the character of the individual, which, if the case was intended to rest on that, ought to be very clearly stated, in order that the other party might have

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Lord Campbell .—My Lords, I am of opinion that this interlocutor ought to be affirmed, and I offer my opinion, not without some confidence, for I have now to deal with a branch of law with which my mind was earliest imbued. In my early days I heard a great deal about augmentations and localities, and interim localities, and common agents, and I was very early initiated into the functions of the common agent.My Lords,the question you have to determine is really a very short one. This is an action to reduce, it may be considered (throwing aside the embarrassing circumstances) an action to reduce the interlocutor of 1831, upon the ground that it professed to be pronounced by consent, and that there was no consent. That raises the short issue; was there consent or was there not consent? If there was consent it is allowed that the interlocutor is binding; if it was without any consent, then it ought to be reduced. I will suppose now that the vice is sufficiently pointed out by the summons, although I feel very much the weight of what has been pointed out by my noble and learned friend who has preceded me, but I will suppose that the vice of the want of consent is sufficiently alleged. Well, then, was there consent or not? De facto there was the consent of the gentleman who acted as common agent, and it is not alleged that he did not act with perfect honour and integrity. That raises the question, whether his consent was a nullity. Mr. Robertson very logically and very ably argued, that if this consent was a nullity, then there was no consent, and he makes

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Ordered and adjudged, That the petition and appeal be dismissed this House, and that the interlocutors therein complained of be affirmed, with costs.Solicitors: Spottiswoode and Robertson — Richardson and Connel, Agents.