Scottish Court of Session Decisions

Lord President—The question argued in the multiplepoinding was between an heir and one of four next-of-kin. The fund in medio consisted of heritage, but the Lord Ordinary, by interlocutor pronounced on 9th November 1886, decided that the property was to be regarded as moveable for the purposes of the competition. Under a reclaiming-note to this Division that interlocutor was modified, and the heir was found entitled to a certain portion of the fund in medio. Then, when the division between the heir and the executors had been thus determined, three executors came forward and made an application, and desired to be allowed to participate in the fund which had been won by one executor. The question then came to be, on what terms they should be permitted to participate.

Now, the principle on which a question of this kind is to be solved, when all parties do not choose to come forward, but leave the question to be determined by the efforts of one of their number, is this—When they come in to the case they must bear their share of the expenses which the one who has litigated has incurred. That is a very obvious principle of equity, and in ordinary cases I think the way in which it is to be applied can be easily determined. In the present case the Lord Ordinary has found Henry Cowan, who came forward and fought the case for the next-of-kin, entitled to three-fourths of the expenses he has incurred out of the fund in medio. I do not see that that is consistent with the principle I have referred to. That principle requires one of two courses to be adopted. Either the incoming parties must pay over three-fourths of the expenses out of their own pockets, or the entire amount of the expenses must be deducted from the fund in medio. Either one or other of these courses is just and consistent with the principle referred to. The Lord Ordinary does not decide consistently with this principle when he finds that three-fourths of the expenses should be deducted from the fund in medio. He deducts the three-fourths which the parties coming in should contribute, but not the fourth, which is to be contributed by the claimant Henry Cowan. The principle is a very obvious one, and its application is, I think, not difficult. The only point of specialty in the present case is, that to a certain extent the successful litigant was unsuccessful. A reclaiming-note was presented against an interlocutor of the Lord Ordinary of date 9th November 1886, and under it he lost part of the fund in medio, and to that extent must be considered to have claimed too much. Now, it is said that he should bear the part of the expense incurred in supporting that claim. To that proposition I am not inclined to consent. No doubt it is possible to conceive a case of nimious and oppressive litigation where the litigant could not expect to be reimbursed for the expense he had incurred. The true view, I think, in estimating the expenses to be paid by parties coming in is, that when they ask to share in the fruits of a litigation they must bear the expense of any little mishap which may have occurred in the course of such litigation.

Lord Mure—I am of the same opinion. I think that when one person succeeds in creating a fund for the benefit of the executors they must bear their fair share of the expenses which he has incurred in creating that fund.

Lord Shand—There can be, I think, no doubt but that if Henry Cowan had not appeared in the multiplepoinding the whole fund would have been swept away to the benefit of the heir. The executors are taking benefit of this action of Henry Cowan's, and that being so, I agree with your Lordship that the legitimate expenses incurred in arriving at a settlement of the question which had to be decided must be paid equally by all the next-of-kin. The Lord Ordinary, I believe, thought that he was allocating the fund in that way, and his interlocutor, so far as it deducts three-fourths of the expenses, should be modified, as there should have been a deduction of the whole expenses. The first thing to be done is to deduct the expenses; the second, to divide the fund.

The only specialty in the case is the one referred to by your Lordship, namely, that Henry Cowan was wrong in part of his case. If his contentions had been reckless, then I should have held that he had no claim to be recouped for the expenses in putting them forward; but the argument he submitted was a fair one, and must be looked on as an incident of his pleading the case as he did, and those who take the benefit of his appearance must bear their fair share of the expenses he incurred.

Lord Adam concurred.

The Court pronounced the following interlocutor:—

“The Lords having considered the reclaiming-note for Henry Cowan against Lord Trayner's interlocutor of date 27th January 1888, and heard counsel for the parties, Recal the said interlocutor reclaimed against in so far as it deals with the fund in medio falling to the next-of-kin: Find that the whole expenses incurred by the said reclaimer in the competition with James Cowan, the

Page: 11↓

heir-at-law, including expenses for which the said reclaimer was found liable to said heir-at-law, fall to be paid to the reclaimer out of the fund in medio: Find the reclaimer entitled to expenses since the date of the Lord Ordinary's interlocutor reclaimed against, and of consent rank and prefer the said Henry Cowan to the sum of £143, being his share of the fund in medio, and the amount of the expenses to which he has been found entitled under the first and second findings of this interlocutor, as the same have been adjusted by the counsel for the parties: Further, of consent rank and prefer the claimants Mrs Margaret Cowan or Hodge, Mrs Catherine Cowan or Waddell, and David Scott Cowans, each to the extent of one-third of the balance of the fund in medio.”