HENRY CHARLES RUTHERFURD v Sir JOHN NISBETT'S TRUSTEES (Court of Session)

The facts of this case, and previous procedure, are stated in the report of the judgment, 12 Nov. 1830, Fac. Coll. , which disposed of the defence of want of title to pursue. A second preliminary plea, afterwards insisted in, was res judicata, founded on the action of reduction brought by John Edgar, as trust-disponee of the present pursuer's grandfather, against the late Sir John Nisbett, and in which the question of Sir John's legitimacy, and the consequent validity of his special service and infeftment, were finally determined in his favour, by decree-absolvitor.

Laying these things aside at present, the question of law is, Whether, where an estate stands destined by fee-simple titles, and a person is served heir of provision and infeft, as being the lawful son of the deceased, and the immediate heir of provision, failing such lawful issue, challenges the service on the ground of illegitimacy, and decree of absolvitor follows, after full proof and debate, a subsequent heir of provision, not representing the pursuer of that action, may, at the distance of years, maintain an action to the same effect, and is not barred by the exception of res judicata?

The Lord Ordinary has not seen any precise decision of the point, and the argument on abstract principles is somewhat difficult and subtle. He is clear that the case of Gordon v. Ogilvie in 1761 is materially different; because in that case the pursuer was obliged to found on the former action, in order to elide prescription; and the same was the case in Maule v. Maule. But here prescription is not pleaded, and it would be excluded by minorities.

It seems to be of little importance whether this result shall appear to be arrived at upon views of strict law or upon principles of equity. But if it does appear to embrace the substantial law and justice of the case, it is certainly much fortified by a consideration of the danger of the loss of evidence, the dangers of perjury, and the insecure condition of rights of property, which would be involved in the opposite principle.

One circumstance may deserve attention. If the merits of the case were to depend on the birth of John Nisbett having been in England, this would not have applied to Alexander the second son; and if so, John Rutherfurd was not, even on the assumption of John's illegitimacy, the next heir of provision. But Alexander having been called in the action, the decree pronounced was a decree, which would probably have been held available to Sir John both against Edgar and Alexander Nisbett.’