Scottish Court of Session Decisions

This was a petition to apply a judgment of the House of Lords. The Court of Session, affirming the judgment of the Lord Ordinary, had found that the defenders were not liable personally in payment of calls. The House of Lords ordered and adjudged that the interlocutors appealed should, with respect to all the defenders except Dr Andrew Buchanan, be reversed; that with respect to him the appeal should be dismissed with costs; and that the cause should be remitted back to the Court of Session with directions to pronounce decree against the defenders, other than the said Andrew Buchanan, “in terms of the conclusions of the summons in the action in that Court in the proceedings mentioned, subject to the provisions of this order and judgment, and to do farther in the cause as shall be just and consistent herewith.”

The petitioner now moved the Court to apply the judgment, to decern against all the defenders (except Dr Buchanan) “in terms of the conclusions of the summons, and to find these defenders liable in the expenses of the cause in this Court, and also the expenses of the present application and procedure therein.” The petitioners also prayed the Court to remit to the Lord Ordinary to proceed with the cause. This last motion was supported by a reference to the Lord Ordinary's interlocutor, adhered to by this Court, which found that the defenders did not undertake any personal liability, but that of trustees only, and it was maintained that the pursuer was now entitled to go into an inquiry into the state of the funds of the trust, with the object of attaching liability qua trustee to Dr Andrew Buchanan. The Court, however, held that this was altogether inadmissible, because the action was not directed against the defenders as trustees, but personally, and was carefully framed for the purpose of trying the question of their personal liability alone.

The defenders further objected to the petition in so far as it asked decree for expenses incurred in this Court prior to the appeal. The House of Lords had not found them liable in costs of the appeal.; and under the remit to this Court it was not competent to deal with the expenses in this Court. The remit to this Court was to pronounce decree in terms of the conclusions of the summons, and thus exhaust the cause. In such cases it has been decided that this Court cannot give expenses. ( Stewart v. Scott, 14 S. 692, and Colquhoun v. Borrows, 17 D. 245). When the House of Lords intends that expenses in this Court should be awarded it always says so in the judgment. ( Hay v. Magistrates of Perth, 1 Macph. 41.)

It was answered that the remit was to decern in terms of the conclusions of the summons, and one of these conclusions was for expenses. The Court were therefore bound, in applying the judgment, to find expenses due.

The Court applied the judgment, decerned against the defenders (except Dr Buchanan) for the calls sued for, and assoilzied Dr Buchanan, but quoad ultra refused the petition.