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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Downib's Curator Bonis and Another v. Macfarlane's Trustees and Others [1895] ScotLR 33_53 (6 November 1895) URL: http://www.bailii.org/scot/cases/ScotCS/1895/33SLR0053.html Cite as: [1895] ScotLR 33_53, [1895] SLR 33_53 |
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Page: 53↓
(Ante, vol. xxxii. p. 715.)
Where two sets of defenders had put in separate defences, and it was objected by the pursuer to the Auditor's report that he had allowed them the expenses of their separate appearances— observed per cur. that such an objection should have been raised on the motion for expenses.
The Court having in this case dismissed the first and second declaratory conclusions in so far as directed against the defenders, the trustees of the Patterson trust and of the Cook trust and Mrs Millar, assoilzied them from the remaining conclusions of the summons and found them entitled to expenses. A question as to expenses arose in the following manner—The defenders, the Patterson trustees and the Cook trustees, gave in separate accounts of expenses, which the Auditor taxed, adding to his report the following note—“At the audit the pursuers' agents contended that these defenders and Cook's trustees ought to have had only one account as their interests were identical. The Auditor, however, thinks that the matter is one for the Court to deal with, and they having awarded expenses to all the defenders without any qualification, he feels that he has no power to restrict them to the effect contended for.”
On a motion to approve of the Auditor's report, the pursuers objected, and argued—the Patterson trustees and the Cook trustees ought to have made common cause, for the questions at issue between the pursuers and both sets of trustees were identical. This was the proper stage for raising this question— Cameron v. French, October 26, 1893, Scot. Law Times, vol. i. p. 259.
Argued for the defenders—(1) The pursuers' objection was unfounded in fact. The questions between the pursuers and the two sets of trustees were similar but not identical, and the interests of the defenders had really been conflicting. (2) In any event, the objection came too late. The invariable practice, if not the rule, of the Court was that any such objection should be made when the defenders moved for expenses— Duncan v. Salmond, March 17, 1874, 1 R. 839.
Lord President—I think both sets of expenses must be allowed, in the first place, because that appears to have been under the consideration of the Court when the interlocutor was pronounced, and also now that it has been reopened, it appears that there are quite substantial grounds for separate conduct of the case for each set of defenders. I may add that I think this discussion very forcibly illustrates the convenience of the practice of determining this question in the discussion when the finding of expenses is made, because otherwise the whole subject has to be re-discussed and brought back to the mind of the Court.
The Court approved of the Auditor's report.
Counsel for the Pursuers— C. K. Mackenzie— Constable. Agents— Dundas & Wilson, C.S.
Counsel for Mrs Macfarlane's Trustees (Patterson Trust)— Guthrie— James Reid. Agents— Thomson, Dickson, & Shaw, W.S.
Counsel for Mrs Macfarlane's Trustees (Cook Trust)— W. Campbell— Crole. Agent— W. B. Rainnie, S.S.C.
