Scottish Court of Session Decisions

James Wood, cab-driver, 4 Murdoch Terrace, Edinburgh, and another, raised an action against the trustees of the deceased John Wood, 2 Sciennes Hill, Edinburgh, in which the pursuers sought to recover a sum of £218, being expenses to which they had been found entitled in an action of count, reckoning, and payment at their instance against the same defenders.

In the action of count and reckoning referred to, an interlocutor was pronounced on 9th January 1902 by which, inter alia, the pursuers were found entitled to expenses, but they never obtained decree for the taxed amount thereof, having failed to lodge their accounts.

That action was finally disposed of on 1st July 1903.

The present action was raised in August 1903.

On 23rd December 1903 the Lord Ordinary ( Pearson) dismissed the action as incompetent.

Opinion.—“The pursuers are sons of the deceased John Wood, and the defenders are the trustees under John Wood's will. The claim in this action is for payment of a sum of £218, 8s. 2d., being the expenses to which it is said the present pursuers were found entitled in a previous action of count and reckoning at their instance against the same defenders.

In that previous action the pursuers, by interlocutor of 9th January 1902, were found ‘entitled to expenses generally down to 18th June 1901,’ other than certain expenses there mentioned; and, on the other hand, the defenders were found entitled to certain expenses. Accounts of these expenses were allowed to be lodged, and a remit was made to the Auditor to tax and report. The defenders lodged the account of their expenses, and the Auditor's report thereon was approved, subject to certain objections stated by the defenders. The pursuers, however, failed to lodge their account of expenses; and after repeated enrolments by the defenders to have them ordained to do so, a state showing the interim division of the trust estate among the beneficiaries was prepared, irrespective of the pursuers' claim for expenses. That state was approved by interlocutor of 18th February 1903, which also fixed the balances due by the defenders to the two pursuers, and decerned therefor. On a reclaiming-note by the pursuers, this interlocutor was affirmed; and I understand it has since been extracted, on the footing that it exhausted the cause.

The pursuers now bring this action in order to have effect given to the finding of expenses in their favour contained in the interlocutor of 9th January 1902. They produce an account of these expenses; and they desire now to have it remitted to the Auditor for taxation. In other words, they propose now, in a separate action, to take up the incidental procedure in the action of count and reckoning at the point where it was left through the unexplained default of themselves or their law-agent. I have not to consider whether it might have been possible to resuscitate that action so as to give effect to the claim, for the discussion before me proceeded distinctly upon the footing that it is now too late to do so, and that a separate action was necessary.

I think the pursuers' demand is quite out of the question. It furnishes a strong illustration of the propriety of what I have always understood to be a rule of practice, that, as between the parties themselves, all questions of expenses must be determined in the action in which the expenses are incurred. There may be apparent exceptions, but none of them touches the present case, and, indeed, I know of no exception to the rule as I have stated it. Even if, as being a rule of practice, it were capable of being relaxed, this is certainly not a case for relaxing it.

It is suggested that after all the liability was determined in the previous action by the finding in the pursuers' favour. and that the present claim is merely for decree conform, or for constitution of the debt. In my opinion it cannot accurately be so described, but even if it could, I should desiderate some authority on or practice in support of the pursuers' contention as applied to a matter of expenses.

It may seem hard that the pursuers should lose the right to recover so large an account as appears to have been incurred. But it has been lost through default. If it

Page: 490↓

was their own default, they cannot complain of the loss. If it was not, they may possibly have a good defence against a demand for payment of the account.”

The pursuers reclaimed, and argued—The rule of practice which the Lord Ordinary had followed was unsupported by authority. The present action was competent, following on a finding as to expenses obtained in the action in which they were incurred. Mackay's Manual of Practice, 637.

The respondents were not called upon.