Scottish Court of Session Decisions

Sequel of the case reported February 20, 1836 (ante, XIV. p. 549), which see. The Court, of that date, considering that the parties should be farther heard by the judicial referee before he delivered his award, pronounced this interlocutor;—“Remit the case again to Mr Moir, as judicial referee, with instructions to him to hold his award as merely the notes of his intended judgment, and to hear the parties further, and do therein as shall be just.” The original remit embraced not only the merits, but “also all questions of expenses.”

Parties were fully heard before the referee under the renewed remit, and an award was pronounced by him, disposing of the merits of the cause, after which it proceeded in these terms:—“Finds the said John Macarthur liable in expenses to the said Isaac Baxter in the procedure betwixt them before the supreme court, and also under the present judicial reference, inclusive of the fee for the great labour and trouble which the judicial referee has had in the complicated business in question, and to his clerks, if it shall be the pleasure of the Court to find him entitled to remuneration for such labour and trouble in a matter in which he acted under the orders, and as an officer or servant of Court; allows accounts of Mr Baxter's expenses aforesaid to be given in, and remits the same when lodged to Thomas Guthrie Wright, Esq., auditor of the Supreme Court, to tax and report.” ^†

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^* Decided March 8, 1838; but report accidentally omitted of that date.

^† “ Note by Referee.—It was objected to the former award, that the judicial referee had thereby fixed a fee to himself. That, however, is a mistake. What he meant, and all that said award, as well as the present award, bears on that subject, was laying down the principle, that as Mr Macarthur's mode of management of the sequestrated estates in question was so improper, and had caused the present litigation and enquiry, he is legally chargeable with the whole expense incurred before the Court, and before the judicial referee, including his fee, &c., if the Court shall find him entitled to any such, that matter being humbly left entirely under the control and disposal of the Court.”

Baxter now moved the Court to interpone their authority to the award, and to find the arbiter entitled to a fee. Macarthur objected that the finding in the award, as to the fee, was not only void in itself, but vitiated the award. To which Baxter answered, that the finding was only in explication of that part of the judgment which related to expenses; and it merely declared that Macarthur, one of the parties, was liable to the other party, for the amount of the fee to the referee, if the Court should allow such fee. The finding was, therefore, most guardedly expressed, and was in truth necessary for the purpose of exhausting the reference on the point of expenses.