Barrs v Jackson
| Jurisdiction | England & Wales |
| Judgment Date | 10 July 1845 |
| Date | 10 July 1845 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 754
HIGH COURT OF CHANCERY
S. C. 1 Y. & C. C. C. 585; 14 L. J. Ch. 433; 9 Jur. 609. See Spencer v. Williams, 1871, L. R. 2 P. & D. 235; Tekait Doorga Persad Singh v. Tekaitni Doorga Konwari, 1878, L. R. 5 Ind. App. 158; The Queen v. Hutchings, 1881, 6 Q. B. D. 304. Abouloff v. Oppenheimer, 1882, 10 Q. B. D. 307; Rajah of Pittapar v. Sri Rajah Row Buchi Sittaya Garu, 1884, L. R. 12 Ind. App. 19; Caird v. Moss, 1886, 33 Ch. D. 28; In re Allsop & Joy's Contract, 1889, 61 L. T. 215.
[582] barks v. jackson. Dec. 15, 1843; July 10, 1845. [S. C. 1 Y. & C. C. C. 585; 14 L. J. Ch. 433 ; 9 Jur. 609. See Spencer v. Williams, 1871, L. R. 2 P. & D. 235; Tekait Doorga Persad Singh v. Tekaitni Doorga Konwari, 1878, L. R. 5 Ind. App. 158 ; The Queen v. Hutching, 1881, 6 Q, B. D. 304. Alouloffv. Oppenheimer, 1882, 10 Q. B. D. 307 ; Piajah of Pittapur v. Sri Bajtdi Row Buchi Sittaya Gam, 1884, L. R. 12 Ind. App. 19 ; Cain/ v. Moss, 1886, 33 Ch. D. 28 ; In re Attsop & Joy's Contract, 1889, 61 L. T. 215.] If the sentence of an Ecclesiastical Court in a suit for administration turns upon the question of which of the parties is next of kin to the intestate, such sentence inconclusive upon that question in a subsequent suit in this Court between the same parties for distribution. This was an appeal from a decree of Vice-Chancellor Knight Bruce. The material facts of the case are shortly stated in the Lord Chancellor's judgment. The only authorities cited in the argument will be found referred to in the report of the hearing below (2 Y. & C. C. C. 585). Mr. Simpkinson and Mr. Heathfield, for the Plaintiffs (the Respondents). Mr. Purvis and Mr. Hubback, for the Defendants (the Appellants). July 10. the lord chancellor [Lyndhurst]. In this case Harriet Martindale Smith died unmarried and intestate, and a suit was instituted in the Prerogative Court for administration to her estate. Jackson, the Defendant in this suit, claiming as. second cousin to Harriett Martindale Smith, and as her next of kin : Mrs. Barrs claiming as her niece, and next of kin. The Court decided in favour of the claim of Jackson, and the sentence was, that administration should be granted to him as next of kin. A suit was afterwards instituted in this Court-the suit now before me-by Mrs. Barra, claiming, as niece and next of kin, the residuary estate of the intestate. The Defendant, in his answer, insisted on the sentence of the Ecclesiastical Court, by which administration was [583] awarded to him. He stated that the question now 1 PH. 884. BARBS V. JACKSON 755 in issue was the sole question in the Ecclesiastical Court, and that it was there decided iti his favour. The question is whether, this point having been decided between the same parties, that decision is conclusive. The Vice-Chancellor did not consider it conclusive, but directed an issue; and from that order this appeal is brought. It was stated at the Bar and before the Vice-Chancellor that this point had been, decided by the House of Lords in 1776, in the case of Bouchier \. Taylor (4 B. P. C. 708). If that be so, if the point was raised in that case, and was actually decided, I cannot enter into any general reasoning upon it, but I am bound by that decision. Therefore, it is necessary to consider the ease of Bmichier v. Taylor. Dr. Bouchier claimed to be next of kin to Anne Millington. He claimed as her first cousin once removed. Alice Merchant claimed as her h'rst cousin. A suit was instituted for administration in the Prerogative Court, and the decision was in favour of Dr. Bouchier. That decision turned solely on the question which of the two claimants was next of kin. Afterwards, a suit was instituted in this Court by a person claiming under the will of Alice, as her residuary legatee ; the Defendant insisted on his title as next of kin, and the question was, whether the decision of the Ecclesiastical Court was conclusive and binding on the parties. The suit there was not actually between the same parties, but between one of the same parties and a person claiming under the other, so that in effect it was between the same parties. It came on before the Lord Keeper Henley, and the sentence being insisted on as a plea in Bar to the suit, it was ordered that the plea should stand for an answer, with liberty to except. Exceptions [584] were accordingly taken. On the argument of those exceptions, there were two points in controversy : first, whether the sentence was conclusive; and, secondly, if it was not,, what was the effect of certain special circumstances, which were also insisted on. The Lord Keeper directed an issue, and Lord Chancellor Bathurst, on appeal, affirmed that decision, only varying the form of the issue. An appeal was then carried to the House of Lords, while Lord Bathurst himself sat there as Chancellor. Lord Mansfield was present; the case was elaborately argued, and the result was, that the House of Lords reversed the decision of the Lord Chancellor, in his presence. If, therefore, in that case this point was raised and decided, that decision concludes the question as far as this Court is concerned. It was said, however, that nothing appeared in the order of the House of Lords to shew on what ground it proceeded : it was a mere judgment of reversal. It is only by looking at what falls from, the Lords in moving the judgment that you collect what are the precise grounds of the decision. Now, at that time, there were no reports" of proceedings in the House of Lords. Mr. Brown collected and abstracted the appeal cases decided there, and his report is nothing more than an abstract. Therefore, if it rested on Mr. Brown's report, it would be difficult to say on what ground the judgment in question proceeded; but we happen, from another source, to have a very distinct account of what passed, from which it appears that the House of Lords decided the case on both grounds. For that we need no better authority than the evidence of Mr. Hargrave. He was counsel in the cause : he drew the case for the Appellant, and he was present at the argument and judgment. In his Law Tracts (p. 473), after stating that two points were made-one being, whether the sentence of the Ecclesiastical Court was not conclusive ; the other, whether [585] the special circumstances of the case did not make an issue improper-he goes on to say that "on the hearing the decree was reversed on both grounds, without the least opposition by the Lord Chancellor, or any other Lord : and Lord Mansfield, who was the only speaker on the subject, in his reasons against the decree, was clear that the sentence was conclusive, notwithstanding the difference in point of objects between the two suits; and that the Court of Chancery, in exercising its concurrent jurisdiction as to distribution, was concluded by sentences of the Spiritual Court in granting administration, and not at liberty to re-examine the points decided in the exercise of that peculiar jurisdiction." In that case, as in this, the suits were for different objects ; one was for administration, the other for distribution ; but the fact had been in issue between the same parties, and had been decided between the same parties. It appears, therefore, from Mi'. Hargrave'a account, that in the House of Lords the case of Bouchier v. Taylor, which was exactly similar to the present, was decided on that as one of the two grounds taken by the Appellant; and if I am satisfied that Mr. Hargrave's representation of what passed is correct, and I have no reason whatever to doubt it, I am bound by that decision. 756 BARRS V. JACKSON 1 PH. 586. It was, however, said in argument that that decision was previous to the opinion of the Judges in the Duchess of Kingston's case, (20 How. St. Tr. 355), the former being pronounced in March 1776, the latter in April of the same year. But no opinion expressed by the Judges in the House of Lords can be put in competition with a decision of that House, except so far as it is adopted by them. And, therefore, no opinion expressed by the Judges ought to weigh with me against the decision to which I have referred. The [586] only point, however, decided in the Duchess of Kingston's case, and which had no relation to this question, was this-that the sentence of an Ecclesiastical Court in a suit of jactitation of marriage was not conclusive, as to the validity of the marriage, in a prosecution subsequently preferred against one of the parties for bigamy. The Judges further gave their opinion that even if it had been conclusive, still evidence was admissible to shew that it was obtained by fraud. I have carefully read through the opinion of the Judges as delivered by Chief Justice De Grey, and I have found nothing in it at variance with the decision in Bomhier v. Tai/lor ; for the ground of their opinion was, that the two proceedings were between different parties, and that the decision of a question raised between Mr. Harvey and the Duchess of Kingston could not be conclusive in another proceeding between the Duchess of Kingston and the Crown. Some observations were made upon the form of the sentence of the Ecclesiastical Court, as if in consequence of the form it ought not to be considered conclusive. The terms of the sentence were that, as far as appeared by the evidence, Jackson had proved himself next of kin. That is the usual form of the sentence in such cases, and it is the form in Boiichier v. Taylor, " that, as far as appeared by the evidence, Dr. Bouchier had proved himself next of kin." Therefore, if any argument could be built upon the form of the sentence, it would have applied equally to that case as to the present: but it appears to me that nothing, in fact, turns upon the form of the sentence : for where the Court decides upon an issue of fact, it must be presumed to decide upon the evidence actually adduced before it, and therefore the sentences in these two cases express nothing more...
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