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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Fulton v. Eglinton [1895] ScotLR 32_601 (26 June 1895) URL: http://www.bailii.org/scot/cases/ScotCS/1895/32SLR0601.html Cite as: (1895) 22 R 823, [1895] ScotLR 32_601, 22 R 823, [1895] SLR 32_601 |
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Page: 601↓
[Sheriff of Chancery.
Held that the decision of the Sheriff of Chancery, dismissing a petition for service which no party appeared to oppose, did not constitute res judicata to the effect of excluding a second petition for service by the same person.
On 10th September 1883 William Stephen John Fulton, 2 Salisbury Square, Edinburgh, presented a petition to the Sheriff of Chancery for service as nearest and lawful heir of tailzie and provision in general to Archibald, 11th Earl of Eglintoune, Lord Montgomery and Kilwinning, who died in 1796 without leaving any male issue. The petitioner averred that the deceased Earl had a younger brother, James Montgomery, who predeceased him, and who was otherwise called James Fulton or Fultoune of High Warwickhill, Dreghorn, Ayrshire. He maintained that he was the great grandson of James Montgomery and great-great-grandson of Alexander, ninth Earl of Eglinton, and contended that as such he was the nearest and lawful heir-male of tailzie and provision in general to Archibald, 11th Earl of Eglinton under a series of titles enumerated in the petition.
No appearance was made for the existing Earl of Eglinton, and on 15th February 1884 the Sheriff of Chancery ( Muirhead) pronounced the following interlocutor:— “Finds that the petitioner has failed to establish that his great-grandfather, James Fulton of Fultowne, designed in the petitioner's service to him in 1877, as ‘farmer in High Warwickhill, Dreghorn, Ayrshire,’ was a lawful son of Alexander, 9th Earl of Eglinton, and younger brother of Archibald, 11th Earl: Therefore refuses to serve as craved, dismisses the petition, and decerns.”
On 14th March 1893 Mr Fulton presented another petition to the Sheriff of Chancery, craving the Court to serve him as heir to Archibald, 11th Earl of Eglinton as in the former petition. The petitioner made the same averments of fact as previously, but founded his claim on a new document.
Answers were lodged by the Earl of Eglinton, who pleaded res judicata.
On 2nd March 1895 the Sheriff of Chancery ( Wallace) dismissed the petition in respect that “in the present petition there is no relevant averment of res noviter veniens ad notitiam, and that the judgment of 15th February 1884 is res judicata.”
The petitioner appealed, and argued— There could be no res judicata in an ex parte petition where no appearance was made for any other person.
At advising—
Lord President — I think that the Sheriff's interlocutor cannot stand. The only operative finding is that a previous judgment of the Sheriff of Chancery is res judicata. Now, the proceedings in the former petition are printed in the appendix, and it appears that the petition was an ex parte proceeding on the part of the present petitioner which the Sheriff disposed of without appearance being made for the Earl of Eglinton. De facto, the Earl of Eglinton had been served years ago, but without two parties being in the field no judgment can be res judicata. I think therefore that the case must go back to the Sheriff, all pleas of parties being left open.
The Court sustained the appeal and remitted to the Sheriff.
Counsel for the Appellant — Party. Agent—Party.
Counsel for the Respondent— Rankine— C. K. Mackenzie. Agents— Blair & Finlay, W.S.
