Scottish Court of Session Decisions

In an action at the instance of Mackenzie of Flowerburn, against the Magistrates of Fortrose, and against certain feuars of the Magistrates, the point stated in the subjoined note of the Lord Ordinary was verbally reported by his Lordship to the Court. ^*

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^* “This is an action of declarator brought for the purpose of having it found that certain feu-rights granted with absolute warrandice by the compearing defenders, the Magistrates of the burgh of Fortrose, to the non-compearing defenders, the present holders of those rights, are null and void, as having been granted a non dominis, or by parties assuming and pretending to rights which were not in them, but truly belonged to the pursuer exclusively. There is no other medium concludendi, in the summons, which does, however, conclude for removing as against the feuars in possession, and for damages for past trespass and usurpation of property against both sets of defenders. Defences have been lodged on the merits for the magistrates, the alleged superiors and granters of the feu-rights. But the vassals or grantees have made no appearance; and when the cause came to be called, with the view of preparing a record, the pursuer moved as of course for decree against the defenders, who had made no appearance. The compearing defenders, however, opposed this, on the ground that such a decree would immediately subject them in actions of relief and damages to their vassals, and that they were entitled to compear and defend their rights, as well as their own, in this original action. On the other hand, the pursuer founded on the express provisions of the acts of Parliament and Sederunt, by which it is declared, that where no defences are lodged, and no appearance made, decreet in absence shall in all cases be pronounced;—and stated further, as his interest to insist for such decree, that the compearing defenders were of doubtful solvency, and that he was entitled either to have judgment in absence, against his more substantial opponents, or to have them sisted as parties on the record. He did not deny, that if they were so sisted, the whole merits of the case might be tried with the other defenders; but maintained, that till they were so sisted, the others had no right to interpose between him and those whom he was by law entitled to hold ad interim as confessed.

“The Lord Ordinary does not think that either of the parties has much interest in the point now raised for discussion, and especially he does not see that any practical injury can arise from pronouncing the decree in absence, now craved by the pursuer. As proceeding merely on default, it will be neither res judicata nor a proper judicial precedent against the compearing defenders, and may be opened up within any reasonable time by those against whom it is directed. When a responsible party appears to defend and to try the merits of a common cause, he believes it very often happens that no decree is asked against those who neglect to enter appearance. But he greatly doubts whether this forbearance can ever be required as a matter of right. And he has a strong impression that it is quite usual to take decree against non-compearing defenders, although the pleas maintained by those who do appear are equally available to those who do not. It is believed, indeed, that this is the common course in actions for expenses against creditors in sequestrations, or against the partners in joint-stock companies by creditors of the concern. There is a difference, no doubt, when the parties jointly convened stand in the relation of the granter and grantee, with absolute warrandice, and the whole ground of action is the alleged want of right in the granter. If the grantee alone was called in such a suit, it is thought that he might plead in right and in name of his author, and there is no doubt that the author might compear along with him, and take the whole burden of the defence. But it seems more doubtful whether, if no appearance whatever was made for the only party called, his author could compear, not along with him, but in his stead. On the other hand, if the granter alone were called, he must go on alone and without reference to any separate proceedings against the grantee; and in the actual case of the granter's default, this rather appears to be the course that should be followed. If the grantees were to enter appearance, merely to say, that they refer to and rely on the defenders for their authors, the Lord Ordinary would at once sist procedure as to them, till the merits were tried with those other parties; but if they do not appear at all, there is no process to be sisted, and he can do nothing but decern in absence, or allow the superiors to appear in their stead. Even if decree of removing were pronounced, execution would be stayed, of course, upon reference to the depending action with the superiors. But as no direct precedent has been found on the point, it has been thought best to report it for instructions.”