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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ayr Road Trustees v. W. & T. Adams And Blyth & Cunningham [1883] ScotLR 20_841 (20 July 1883) URL: http://www.bailii.org/scot/cases/ScotCS/1883/20SLR0841.html Cite as: [1883] SLR 20_841, [1883] ScotLR 20_841 |
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Page: 841↓
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In an action against two sets of defenders, an interlocutor was pronounced decerning against one set but assoilzieing Messrs B. & C., the other defenders, and finding them entitled to expenses. This interlocutor was reclaimed against, but the pursuers intimated that they did not intend to object to the interlocutor in so far as it assoilzied Messrs B. & C. B. & C. accordingly had their account of expenses taxed, and on their motion the Lord Ordinary approved of the Auditor's report on their account, and decerned for the amount of their expenses as taxed. This interlocutor the extractor refused to extract, on the ground that the process was in the Inner House. The Lord Ordinary reported the cause, and the Court authorised the extractor to extract the interlocutor.
In an action at the instance of the Ayr Road Trustees against W. & T. Adams, contractors, Callander, and Blyth & Cunningham, civil engineers, Edinburgh, the Lord Ordinary ( Adam) on 20th March 1883 pronounced this interlocutor:—“Decerns against the defenders W. & T. Adams, and William Adams and Thomas Adams, the individual partners of the said firm, for the sum of one thousand pounds sterling: Further, assoilzies the defenders Blyth & Cunningham, and George Cunningham and Benjamin Hall Blyth, the individual partners of the said last-mentioned firm, from the whole conclusions of the action, and decerns: Further, finds the said Blyth & Cunningham, and George Cunningham and Benjamin Hall Blyth, entitled to expenses,” &c.
The pursuers reclaimed.
On 10th April the pursuers' agents intimated by letter to the agents for Messrs Blyth & Cunningham that they did not intend to object to this interlocutor in so far as it assoilzied their clients.
In the pursuers' reclaiming-note Messrs Adams were titled defenders and respondents, while Messrs Blyth & Cunningham were titled defenders only. Messrs Blyth & Cunningham in consequence of the intimation that the interlocutor was not to be challenged as regarded them, lodged an account of their expenses, which was audited—the pursuers, who were represented at the audit, getting several items struck off.
Thereafter Messrs Blyth & Cunningham enrolled the case for the purpose of getting the account approved of. On 27th June 1883 Lord Lee, for Lord Adam, pronounced an interlocutor approving of the Auditor's report, and decerning for the expenses as taxed. This interlocutor the extractor refused to extract on the ground that the process was in the Inner House.
Messrs Blyth & Cunningham having brought the matter before the Lord Ordinary, his Lordship reported it to the First Division.
At advising—
Page: 842↓
The reclaiming-note against Lord Adam's interlocutor was sent to the roll on 12th May, and that interlocutor of Lord Adam was a final judgment of which extract could of course be obtained. But that reclaiming-note brought the process here, and nothing could be done till that reclaiming-note was disposed of if the effect of the reclaiming-note was to bring here as respondents both sets of defenders. But it rather appears to me that, taking the title of the reclaiming-note, it is one in which the reclaimers represent the Messrs Adams as respondents and Messrs Blyth & Cunningham as defenders and not respondents. Now, taking that along with the letter written by the pursuers' agents to the agents for Blyth & Cunningham, we must hold that the reclaiming-note is one in which the pursuers do not seek to object to that part of the interlocutor which assoilzies Blyth & Cunningham with expenses. I do not see why Blyth & Cunningham should not be entitled to proceed under that part of the interlocutor which is not to be challenged, and which allows them to give in an account of expenses, and remits to the Auditor to tax and report. That is just what Blyth & Cunningham did, for they lodged an account and then asked the Auditor to fix a diet for taxation. That was done, and the pursuers in accordance with what appears to be their intention from the reclaiming-note and from the title to which I have alluded, attended the audit, and with effect, for they got £50 struck off the account. Then the Auditor reports to the Lord Ordinary, and quite rightly, for it was by the Lord Ordinary that the remit was made, and the Lord Ordinary, on Blyth & Cunningham's motion, approves of the account and decerns for the amount as taxed.
The difficulty of the extractor is that the process is here and not in the Outer House; but that is only a technicality, and does not avail in the circumstances of the case. The real question is, whether in the position of the process on 27th June the Lord Ordinary had jurisdiction to pronounce this interlocutor. I think that he had, and that the course we should follow is, on Mr Murray's motion to authorise the extractor to extract this decree.
I think that the Lord Ordinary is the person to say whether a cause is properly before him or not; and if, as frequently happens, having the cause before him as regards one set of defenders he gives decree, it rather seems to me that it is the extractor's duty to respect that decree, and that the mere circumstance of the process being in the Inner House for one purpose should not affect the extractor in the discharge of his duty.
I concur with your Lordships, as the difficulty has arisen, that relief should be granted in the circumstances. I only wish to guard against saying anything that might indicate that I considered such an order necessary.
The Court pronounced this interlocutor:—
“The Lords on the motion of the defenders Messrs Blyth & Cunningham, upon the report of Lord Lee, authorise the extractor to proceed with extracting the interlocutor of Lord Lee for Lord Adam, of date 27th June 1883.
Counsel for Messrs Blyth & Cunningham— Graham Murray. Agents— Tods, Murray, & Jamieson, W.S.
