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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Miller v Petty [1835] CA 13_783 (19 May 1835)
URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0783.html
Cite as: [1835] CA 13_783

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SCOTTISH_Shaw_Court_of_Session

Page: 783↓

Miller

v.

Petty
No. 242.

Court of Session

2d Division

May 19 1835

Lord Jeffrey.

George Millar,     Advocator.— D. F. Hope— Shaw. James Petty,     Respondent.— Cheape. William Drummond     Respondent.— H. J. Robertson— Shand.

Subject_Process—Advocation.—

The raiser of a multiplepoinding before an inferior court brought an advocation as to one part of the judgment there pronounced, which refused him credit for a certain sum in estimating the fund in medio; and compearance was made by two claimants, who gave in additional pleas in law, pleading to the merits of the competition as between them without stating any objection of incompetency—held competent, under the raiser's advocation, to review the judgment on the merits of that competition.

The advocator, Millar, brought a multiplepoinding before the sheriff of Fife as to the balance of a sum of £500, impressed into his hands by one Cassels, in security of certain obligations, under the usual condition of accounting for the balance. In his condescendence of this fund, Millar claimed credit for a sum of £69, 4s. 6d. as the amount of a debt alleged to be due by Cassels to him, and also for another sum of £260, as paid to the Fife Bank on account of a bill for £280, drawn by the respondent Petty upon, and accepted by, Cassels. In this process of multiplepoinding, claims were, inter alia, given in by Petty, who had obtained an assignment from Cassels of the reversion of the fund in Millar's hands, and who, in virtue thereof, claimed the balance, and also by the other respondent, Drummond, for the Fife Bank, who claimed the balance of the £280 bill above mentioned. Petty further objected to Millar's being allowed credit for either of the sums of £69, 4s. 6d., or £260, above specified. The sheriff ultimately pronounced a judgment, in which he disallowed the credit claimed for the £69, 4s. 6d., but admitted that for the £260; and at the same time preferred Drummond, primo loco, for the balance still due on the £280 bill, and Petty, ultimo loco, for the ultimate balance, if any. Millar thereupon brought an advocation, in which he set forth, that he “submitted to the review of the Court” the interlocutors of the sheriff, “so far as they are adverse to him.” The advocation was not served against Drummond, but compearance was made for him as well as for Petty, and both gave in additional pleas in law, on which the record was closed. In the pleas given in for Petty, the sheriff's judgment was objected to, in so far as he had allowed Millar credit for the £260 paid to the Fife Bank on account of the £280 bill, and had preferred Drummond for the balance still due; while, in those of the latter, the judgment on that point was supported with this qualification, that it was pleaded, that the sheriff ought to have found him entitled to expenses. No objection was stated by Drummond in his pleas to the competency of opening up the judgment of the sheriff, so far as adverse to Petty, in an advocation by the raiser Millar only, and as to a finding, simply disallowing an item of credit claimed by him; but, in the debate before the Lord Ordinary, he contended, that Petty having brought no advocation, the sheriff's judgment, in so far as it sustained the payment made to the Fife Bank to account of the £280 bill, and for the balance still due preferred Drummond's claim to his, was conclusive and final against him, and could not be opened up under the advocation of the raiser, limited to another part of the judgment altogether. The Lord Ordinary advocated the cause, and repeated the sheriff's finding as to the amount of the fund in medio; and at the same time, found, with reference to Petty's objection to that part of the judgment in favour of Drummond, “That is not competent for the respondent Petty, who has brought no separate or counter advocation, to complain in this process of findings or decernitures on the merits of the claims or interests of other respondents, or co-defenders in the cause, which findings or deeernitures are not complained of or brought under review by the advocator, and therefore finds, that the £280 admitted by the judgment of the sheriff must remain at the credit of the advocator; and on the whole matter, and in terms of that judgment, ranks and prefers the claimant, Mr Drummond, for the Fife Bank, primo loco, to the extent of the balance still remaining due of the said £280: Prefers, secundo loco, Messrs Christie and Pagan to the extent of the draft by James Petty in their favour: Prefers Mr Thallan, tertio loco, to the extent of the debt secured by his arrestment; and prefers James Petty, ultimo loco, he always producing a joint discharge or assignment from James Webster before receiving payment, and decerns: Finds the advocator liable in the expenses incurred by James Petty in this Court, as to the bill for £69, 4s. 6d., and finds James Petty liable to Mr Drummond, for the Fife Bank, in the expenses occasioned by his incompetent attempt to disturb the findings of the sheriff as to the bill for £280: Allows accounts of these expenses to be given in, and remits the same, when lodged, to the auditor for his taxation and report.”

His Lordship, at the same time, issued the subjoined note as to this point. *

_________________ Footnote _________________

* “The Lord Ordinary must hold that the case of Murdoch 1 was meant only to apply to a question of expenses, and it truly imports no more than that, in that accessary and discretionary question, a counter advocation (though competent) was not necessary, and so Lord Mackenzie appears to have viewed it in the later case of Easdale;—as to decisions on the merits, and especially in actions of multiplepoinding, which frequently embrace, in one judgment, decisions on many totally independent points, and between unconnected parties, it would be strange if an advocation by one party, complaining of one finding, and only reciting the interlocutors in which it was contained, should entitle all the other parties in the cause, without any advocation on their part, and without finding caution, to complain of all the other findings and interlocutors in the process.

“The Lord Ordinary conceives that no such thing was ever held competent, at any period of our practice, though, while advocations were permitted from interlocutory judgments, there might be more ground for holding that they merely changed the court in which the action was to proceed, and transferred all parties to the higher tribunal. Now, however, when advocation is generally competent only after final judgment, and in fact has been strictly a process of review, it would seem impossible to deal with it in any other way, than as other processes of review are dealt with, whether in the shape of reclaiming notes, appeals to the House of Lords, or otherwise, the principle in all such cases being that the judgment (for it is no longer a process but a judgment which is the subject of common advocations) shall continue in force, except in so far as it is complained of, and with relation to the parties and interests affected by that complaint.

“The case of expenses is obviously peculiar. The claim for them is not properly a claim for a legal right, but a mere appeal to the equitable discretion of the judges, before whom parties have been conducting a litigation, and their allowance or disallowance is not the decision of a cause, but an exercise of this discretion after all matters of right and of law have been determined. Expenses accordingly may be claimed by a defender, though, as a party to the suit, he can ask nothing but absolvitor, and can never be in petitorio, and they may be awarded to a pursuer to a greater extent than he may have libelled, or though he may not have libelled for them at all. Wherever the Court, therefore, has the means of reviewing the whole conduct of the litigation, they may be thought entitled to the fullest exercise of their discretion as to this accessary and postponed question. The case of Murdoch probably proceeded on those views; for, though very shortly reported, it seems (from the Faculty Report) to have gone upon the ground that the whole cause on the merits being before the Court, they must have power to dispose of the whole expenses.

“The advocator proposed to prove that the £69 bill was truly a debt of John Cassels, by that person's oath; but such a mode of proof would be plainly incompetent, at all events, against Thallan, the arrester, and could only be allowed as against Christie and Pagan, and James Petty, on the ground that the draft and assignation under which those parties respectively claim were gratuitous, or in trust for John Cassels himself, which, it is apprehended, could only be proved by writ or oath of those claimants. Upon this point, however, or, generally, on the competency of such a reference to oath (which, if competent, may be made at any time), the Lord Ordinary would be understood to give no judicial opinion at present.”

1 March 8, 1832, antex., p. 445.

Petty reclaimed, and prayed the Court “to find that the whole of the inferior court process was removed to this Court by the advocation of the said George Millar, and that the petitioner was entitled to maintain against him and the said Fife Banking Company, who claim through him, any pleas he had maintained in the inferior court, and to remit to the Lord Ordinary to hear the petitioner on the question of the said bill.”

Lord Glenlee.—Drummond perhaps might not have appeared, but having waived any objection competent to him, and sisted himself and made up a record, how can he now object to his pleas being decided upon when there is not a word of this objection in them?

Lord Medwyn.—This is a mere question of form—I do not say whether the objection be good if properly stated. It is not, however, competent now. The cause is advocated, and the party has appeared without objection.

Lord Meadowbank.—If the judicature act only warrants bringing up the interlocutors complained of, I would doubt if the Lord Ordinary's interlocutor advocating the cause would be held to do more, but on the point stated by Lord Glenlee I am satisfied, and it is not necessary to proceed on the case of Murdoch.

Lord Medwyn.—Particularly in a case of multiplepoinding I conceive it is open to all parties when the process is brought up to compear, and on the general point I think it competent to review the judgment on the merits.

Lord Meadowbank.—My recollection of the old form was, that, if a party did not complain by advocation he was held to have acquiesced, and that the interlocutor was final quoad him.

Lord Justice-Clerk.—I would decide this case on the grounds stated by Lord Glenlee, and without going on the general grounds argued, and if the general point was raised afterwards, I would not be inclined to decide without a written argument, and asking the other judges to reconsider the case of Murdoch, which was determined at a mere verbal consultation.

The Court accordingly, in respect of Drummond having given in pleas in law, and pleaded to the question of preference, recalled the Lord Ordinary's interlocutor, and remitted to his Lordship to hear parties on the merits.

Solicitors: J. Stuart, S. S. C.— J. Murdoch, S. S. C.— J. Shand, W. S.—Agents.

 SS 13 SS 783 1835

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URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0783.html