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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Inglis v. National Bank of Scotland, Ltd [1910] ScotLR 9 (21 October 1910) URL: http://www.bailii.org/scot/cases/ScotCS/1910/48SLR0009.html Cite as: [1910] ScotLR 9, [1910] SLR 9 |
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Page: 9↓
(Single Bills.)
An interlocutor was pronounced by a Lord Ordinary assoilzieing the defenders and finding them entitled to expenses, reserving as to modification if any. More than twenty-one days thereafter a subsequent interlocutor was pronounced approving of the Auditor's report and decerning for the taxed amount of expenses.
Held that it was competent to reclaim against this interlocutor within twenty-one days.
The Court of Session Act 1868 (31 and 32 Vict. c. 100), sec. 53, enacts — “It shall be held that the whole cause has been decided in the Outer House when an interlocutor has been pronounced by the Lord Ordinary which, either by itself, or taken along with a previous interlocutor or interlocutors, disposes of the whole subject-matter of the cause, or of the competition between the parties in a process of competition, although judgment shall not have been pronounced upon all the questions of law or fact raised in the cause; but it shall not prevent a cause from being held as so decided that expenses, if found due, have not been taxed, modified, or decerned for.…”
In this case, which was an action at the
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instance of William Inglis, merchant, Bathgate, against the National Bank of Scotland, Limited, for repayment of the amount contained in a bill which the pursuer alleged had been paid, the Lord Ordinary ( Salvesen) on 22nd April 1910 pronounced this interlocutor—“Assoilzies the defenders from the conclusions of the actions: Finds the defenders entitled to expenses, reserving as to modification if any: Allows an account to be given in, and remits the same when lodged to the Auditor of Court to tax and report, and decerns.” No reclaiming note was presented against this interlocutor.
The Auditor having reported, the Lord Ordinary ( Dewar), on 19th July 1910, pronounced this interlocutor—“The Lord Ordinary approves of the report by the Auditor ad interim in the defenders' account of expenses, and decerns against the pursuer for payment to the defenders of the sum of £363, 6s., the taxed amount thereof.”
The pursuer reclaimed against this interlocutor, his note being dated August 18, 1910, the first boxday in vacation.
The defenders objected to the competency of the reclaiming note, and argued — The interlocutor of 22nd April 1910 was a final interlocutor in the sense of the 53rd section of the Court of Session Act 1868 (31 and 32 Vict. c. 100), and if the pursuer intended to reclaim on the merits he should have done so within twenty-one days of its date — Earl of Kintore v. Alex. Pirie & Sons, Limited, October 21, 1904, 42 S.L.R. 5. The interlocutor reclaimed against contained no reclaimable matter and could not therefore be reclaimed against — Stirling Maxwell's Trustees v. Kirkintilloch Police Commissioners, October 16, 1883, 11 R. 1, 21 S.L.R. 1. If it could be, the reclaiming note should have been lodged within ten days.
Argued for pursuer — Esto that the expenses were not part of the merits, they were part of the subject-matter of the cause. That being so, the reclaiming note was competent, and it brought up all prior interlocutors — Baird v. Barton, June 22, 1882, 9 R. 970, 19 S.L.R. 731; Crellin's Trustee v. Muirhead's Judicial Factor, October 21, 1893, 21 R. 21, 31 S.L.R. 8; Taylor's Trustees v. M'Gairgan, May 21, 1896, 23 R. 738, 33 S.L.R. 569.
At advising—
In the argument at the bar it was urged that the cases of Crellin's Trustee v. Muiread's Judicial Factor, October, 21, 1893, 21 R. 21, 31 S.L.R. 8; and Earl of Kintore v. Pirie & Sons, Limited, October 21. 1904, 42 S.L.R. 5, were not reconcilable; but when these cases are closely examined I do not think that they will be found to be at all inconsistent. The rules as to reclaiming may not be strictly logical, but for practical purposes there is no doubt as to how the matter stands.
These rules can be stated very shortly. The first is that although in one sense there cannot be more than one final interlocutor in a case, yet in another sense there may be, because there may be an interlocutor which is not final according to the strict meaning of that term but yet is final in the sense of the statutory definition for the purpose of allowing it to be reclaimed against within twenty-one days without leave. This was the position in the Kintore case, and this was all that was decided there. The interlocutor in that case disposed of the merits of the cause but left over the matter of expenses for the purpose of modification. Now if anyone were asked whether, without reference to any statute, that was a final interlocutor, the answer would be “No,” for something was still to be done—the expenses had to be dealt with. But then, according to section 53 of the 1868 Act, it was final, because that section provides that it shall not prevent a cause from being held as wholly decided that expenses have not been taxed, modified, or decerned for. Now the interlocutor in the Kintore case satisfied this definition, and accordingly the reclaiming note was held to be competent. That is the explanation of the case.
The next rule is that according to section 52 of the 1868 Act every reclaiming note has the effect of submitting to review the whole of the prior interlocutors in the case.
The third and last rule is one which does not depend on the precise provisions of any statute; and it is this, that where at the end of a case there is an interlocutor which is merely executorial, and does not represent the determination of any contention between the parties, that interlocutor cannot be reclaimed against. This rule is based on a series of decisions, of which Stirling Maxwell's Trustees v. Kirkintilloch Police Commissioners (October 16, 1883, 11 R. 1) is one. The typical example of a case falling under this rule is that in which one party has succeeded in the cause and has been found entitled to expenses and a remit is made to the Auditor, and then when the case comes back from the Auditor the Lord Ordinary pronounces an interlocutor approving of the Auditor's report and decerning for the taxed amount of the expenses. This last interlocutor cannot be reclaimed against, and the reason for this is just to prevent the statutory rule that a reclaiming note from an interlocutor brings up for review all the previous interlocutors in the case coming into operation, because if an executorial interlocutor could be reclaimed against, the result, under the rule, would be that the whole matter would be brought
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Now all this may not be strictly logical, and in certain cases there may be two courses open to a party in regard to reclaiming. I have no doubt that, as was quite properly decided in the Kintore case, the defenders in that case were entitled to reclaim although the matter of the modification of expenses had not been determined, but I have also no doubt that if they had not reclaimed then, but had allowed the case to go on, they could, under Crellin's case, have reclaimed against the interlocutor dealing with the modification of expenses, and this would have brought up for review the whole previous interlocutors.
The application of these rules is easy, and the result here is that there is a reclaimable interlocutor, and accordingly I think the case should be sent to the roll.
The Court repelled the objection.
Counsel for Pursuer (Reclaimer)— Mac-Robert. Agent— Allan M'Neil, Solicitor.
Counsel for Defenders (Respondents)— Hon. W. Watson. Agents— Mackenzie, Innes, & Logan, W.S.
