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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M'Keand or King v. Thompson & Co. [1883] ScotLR 20_313 (23 January 1883)
URL: http://www.bailii.org/scot/cases/ScotCS/1883/20SLR0313.html
Cite as: [1883] ScotLR 20_313, [1883] SLR 20_313

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SCOTTISH_SLR_Court_of_Session

Page: 313↓

Court of Session Inner House First Division.

[Sheriff of Dumfries and Galloway.

Tuesday, January 23. 1883.

20 SLR 313

M'Keand or King

v.

Thompson & Company.

Subject_1Process
Subject_2Appeal
Subject_3Competency
Subject_4Expenses — Court of Session Act 1868, sec. 67.
Facts:

An interlocutor by a Sheriff-Substitute disposing of the whole merits of a case and awarding expenses was adhered to by the Sheriff on 27th June 1881. The process then fell asleep and was wakened on 19th October 1882. On 26th October the Sheriff-Substitute decerned for the amount of expenses found due, and allowed decree to go out in the name of the agentdisburser. On 24th November the Sheriff altered this interlocutor, to the effect of finding that the agentdisburser had discharged his claim. On 2d January 1883 the defender appealed to the Court of Session. Appeal dismissed as incompetent, on the ground (1) that under the 67th section of the Court of Session Act 1868 the interlocutor of the 27th June had become final by the lapse of six months from its date without appeal being taken; and (2) that the interlocutor of 24th November merely decerning for expenses was not subject to appeal— Cf Tennents v. Romanes, 8 R. 824, 18 Scot. Law Rep. 583.

Headnote:

In an action in the Sheriff Court of Dumfries and Galloway, at the instance of J. & R. Thompson & Co., manufacturers, Glasgow, against Mrs Hannah

Page: 314↓

M'Keand or King, Stranraer, the Sheriff-Substitute (Rhind) upon 5th April 1881 pronounced this interlocutor:—…. “Repels the defences, and decerns against the defender in terms of the prayer of the petition: Finds her liable in expenses, of which allows an account to be given in, and remits the same to the Auditor to tax and report, and decerns.”

On appeal the Sheriff (Macpherson) adhered on 27th June 1881. Thereafter the process fell asleep. It was wakened by an interlocutor of the Sheriff-Substitute dated 19th October 1882, and on 26th October 1882 this interlocutor was pronounced—“Decerns against the defender for payment of the sum of £23, 10s. 7d. sterling of taxed expenses of process attour the dues of extract; and, as craved, allows decree for £17, 18s. 5d. sterling, part of said expenses, to go out and be extracted in name of William Black jun., solicitor, Stranraer, agentdisburser for the pursuers to that extent; and also allows decree for £5, 12s. 2d., being the remaining part of said expenses, to go out and be extracted in name of Messrs Maclean & Matthews, solicitors, Stranraer, agentsdisbursers for the pursuers to that extent; and decerns.”

The pursuers then appealed to the Sheriff, and answers to their reclaiming petition were lodged by William Black jun.

On 24th November 1882 the Sheriff pronounced this interlocutor:—“Recals the interlocutor appealed against: Finds the respondent the said William Black jun., by his letter to the pursuers dated 5th July 1882, accepted from them the sum of £6, 10s. in payment of his account of expenses: Finds that he thereby discharged any claim which he had as agent for the pursuers to the expenses awarded to them by the interlocutors of 5th April 1881 and 27th June 1881, and that he is not entitled to any part of these expenses: Approves of the Auditor's report on the pursuers' account of expenses, and, in terms thereof, decerns against the defender in payment to the pursuers of £23, 10s. 7d. sterling of taxed expenses of process attour the dues of extract: Finds the respondent the said William Black jun. liable to the pursuers in the expenses of this appeal.”

On 2d January 1883 Mrs King appealed to the Court of Session.

The respondents objected to the competency of the appeal, and argued—The interlocutor of 27th June 1881, which disposes of the merits of the case, had become final in terms of the 67th section of the Court of Session Act 1868, which enacts that “it shall not be competent to take or sign any note of appeal after the expiration of six months from the date of final judgment in any cause depending before the Sheriff or other Inferior Court or Judge, even although such judgment has not been extracted.” The interlocutor appealed against contained merely a decerniture for expenses, and was therefore not appealable— Tennents v. Romanes, June 22, 1881, 18 Scot. Law Rep. 583, and 8 R. 824; Fleming v. The North of Scotland Banking Company, October 20, 1881, 9 R. 11.

The respondent replied that the interlocutor of 19th October 1882 had the effect of wakening the whole process in accordance with section 49 of the Sheriff Courts Act 1876— Cruickshank v. Smart, February 5, 1870, 8 Macph. 512.

At advising—

 Judgment:

Lord President—It appears to me that the case of Tennents v. Romanes is conclusive on this point. The interlocutor disposing of the merits of this case is not subject directly to appeal, because six months have elapsed since it was pronounced. That interlocutor disposed of the merits of the case and awarded expenses in favour of the pursuer, and it is final within the meaning of section 67 of the Court of Session Act 1868. In Tennents' case I stated the point thus—“The interlocutor on the merits, therefore, not being subject to appeal, the question comes to be whether there is any appeal at all. To bring up to this Court a decree for expenses, to the effect of letting the appellant get into a review of the interlocutors upon the merits, would be by a mere evasion to set at nought the provisions of the statute.” I am afraid that is directly applicable to the present case, for how do the facts stand? The interlocutor pronounced by the Sheriff-Substitute is dated 5th April 1881, and was affirmed by the Sheriff on 27th June following, and a period of eighteen months has elapsed since that final interlocutor was pronounced. Then the process fell asleep, and was wakened on the 19th of October 1882, and thereafter nothing could be done except to decern for expenses which had been found due. The circumstance that there was a dispute between two agents as to how the expenses were to be divided does not affect the parties to the suit; it is merely a side issue, and the interlocutor of 24th November 1882 is one of which the appellant cannot complain, and he confesses that he cannot ask the Court to alter it. That makes this case stronger than Tennents v. Romanes, and I am for refusing the appeal as incompetent.

Lord Deas concurred.

Lord Shand—1 think this case is directly ruled. by the decision in Tennents v. Romanes. There it was held that extract barred appeal, and here by the 67th section of the Court of Session Act 1868 the six months clause operates in precisely the same way as the extract did in Tennents' case, and bars appeal. It was said that the interlocutor wakening the process enabled the appellant to appeal against any interlocutor after that date to the effect of opening up all the prior interlocutors. But the only purpose of the interlocutor of 24th November 1882 was to decern for expenses, and Tennents' case settles that any interlocutor which merely gives decree for expenses cannot be appealed against.

Lord Mure was absent on Circuit.

The Court dismissed the appeal as incompetent.

 Counsel:

Counsel for Appellant— Brand. Agent— J. Watson Johns, L.A.

Counsel for Respondents— Lang. Agent— Thomas Carmichael, S.S.C.

 1883

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