A decree having been extracted, be fore expenses, warded, were modified, and without any reservation of them being made, not competent afterward to demand decerniture for them. - Nor any distinction in the case of statutory costs by 16th Geo. 11. cap. 11
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A complaint at the instance of Macniel, a councillor of the burgh of Roth-say, against the election of its magistrates and council, was dismissed, and costs of suit, according to the terms of the statute of 16th Geo. cap. 11. awarded. Before these were modified, however, the Town-Council caused the decree to be extracted; and some time after this, they craved a decerniture for the expences.
Macniel having then objected, That by the extracting of the decree the cause had been finally removed out of Court, so that it was too late to make any claim in it, whether for expenses or any thing else; the Magistrates and Council
Pleaded, When any interlocutor of a court has been regularly reduced into the form of an extracted decree, the jurisdiction of the court, so far as that judgment extends, is no doubt closed, and the cause thence removed. But with respect to subsequent proceedings, the powers of the Court remaining entire, judgment may be pronounced in the same manner as if no extract had been given out. Thus, by extracted acts and commissions, the point respecting the allowing of a proof is irreversibly fixed, and so may be said to be out of Court; and yet the cause, in respect of all future questions that arise in it, continues as open as ever to its decision. Nor are any parts of a cause more separate, than the question of expenses is from any one that regards the merits.
Were this not the case, it is plain, as either party may obtain an extract, that thus, wherever expenses had been awarded without being modified, the party found liable might easily elude the payment.
In the present instance, the rule ought to hold a fortiori: For the awarding of costs being enacted by a special statute, this circumstance seems in a peculiar manner to strengthen the distinction between the respective determinations concerning the merits and the expenses.
Answered, An extracted decree on the merits of a cause puts a period to the' proceedings, and then, instead of a depending action, a res judicata takes place. It is true, indeed, that by special authority of Court, a decree, which is denominated for that reason an interim one, may be extracted under the reservation of a farther procedure; but this specialty concerns not the present case, where no such authority was given. Acts and commissions form no exception, being in their nature nothing more than a preparatory step to the determination of a cause.
Neither surely can it create any distinction, whether a judicatory shall have decreed expenses in obedience to a particular statute, or in conformity to the rules of common law.—Haldane and Others contra Holburn, No 333. p. 12185. 4th August 1761; 10th March 1768, Douglas and Milne contra Elphinston, No 53. p. 8649.
The Lords sustained the objection, and adhered to this judgment on advising a reclaiming petition and answers.
For Macniel, Solicitor-General Blair, Jo. Clerk.Alt. Dean of Fasulty.Clerk, Sinclair.
Fol. Dic. v. 4. p. 152. Fac. Col. No. 90. p. 164.
