Scottish Court of Session Decisions

In this case James Basil Crellin, the pursuer, was found entitled to claim legitim out of the estate of the late Charles Muirhead, upon whose estate John Latta was factor. Upon 9th March 1893 the Lord Ordinary ( Wellwood) pronounced an interlocutor in which after certain findings he remitted to an accountant to fix the amount of the legitim to be paid. Upon 22nd June 1893 his Lordship issued an interlocutor by which he “decerns and ordains the defender to make payment to the pursuer of the balance, being £1234, 14s. 6d., together with interest at the rate of five per cent. per annum on the sum of £523, 2s. 6d. from the 31st of December 1892 till date of settlement: Finds the pursuer entitled to expenses, reserving till after taxation the question whether any, and if so what, modification should be allowed in respect of the ascertainment of the amount of the legitim fund: Allows an account to be lodged, and remits the same to the Auditor to tax and report.”

The defender did not reclaim against this interlocutor.

Upon 14th July 1893 the Lord Ordinary pronounced this interlocutor:—“Approves of the Auditor's report on the pursuer's account of expenses, and having heard counsel on the question of modification, modifies the same to the extent of £14, 5s.: Decerns against the defender for payment to the pursuer of the sum of £166, 6s. 2d. sterling, being the balance of the taxed amount of said account.”

Section 53 of the Court of Session Act 1868 provides—“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…. 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.”

The defender reclaimed upon 17th August 1893.

The pursuer objected to the competency of the reclaiming-note.

The interlocutor of 22nd June 1893 was a final judgment, and should have been reclaimed against in 21 days. The subsequent interlocutor was merely executorial, disposing of the expenses, and could not be reclaimed against except perhaps as to the amount of the modification, £14, 5s. The Court of Session Act 1868, sec. 53, expressly decided that it could not be held that a cause was not finally decided because the expenses “if found due had not been taxed, modified, or decerned for”— Stirling Maxwell's Trustees v. Kirkintilloch Police Commissioners, October 16, 1883, 11 R. 1; Tennents v. Romanes, June 22, 1881, 8 R. 825; Thompson & Company v. King, January 19, 1883, 10 R. 469; Cowper v. Callender, January 19, 1872, 10 Macph. 353; Cruickshank v. Smart, February 5, 1870, 8 Macph. 512.

The defender argued—This was a competent reclaiming-note. The whole questions of the case had not been decided, and the interlocutor reclaimed against was not merely executorial, because the Lord Ordinary reserved the question of modification, and exercised his discretion regarding it after hearing counsel. This case fell under the exception stated by the Lord President in the case of Stirling Maxwell (cited supra). The case was ruled by Baird v. Barton, June 22, 1882, 9 R. 970.

At advising—

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