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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> M.P. - Monteath Douglas' Trustees v. Douglas and Others [1867] ScotLR 3_265 (21 February 1867)
URL: http://www.bailii.org/scot/cases/ScotCS/1867/03SLR0265.html
Cite as: [1867] SLR 3_265, [1867] ScotLR 3_265
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SCOTTISH_SLR_Court_of_Session
Page: 265↓
Court of Session Inner House Second Division.
v.
Facts:
A claimant in a multiplepoinding was in foro ranked and preferred in terms of her claim; but did not for some years enforce the decree. After her death her executor was sisted and moved for decree of new in his favour. This was opposed by another claimant in respect of an alleged change of circum-stances. Held, that the final decree in favour of the claimant could not be gone back upon and decree pronounced of new.
In this multiplepoinding, the Lord Ordinary in 1862 sustained the claim of Miss Margaretta Monteath, one of the claimants, “no objections thereto being stated,” and decerned and granted warrant to, authorised and ordained the trustees, the raisers, to make payment thereof to her. This decree was pronounced in foro, and became final, but was not enforced during Miss Monteath's life. She died in 1865, leaving a will whereby Mr John Spark was nominated her sole executor.
Mr Spark, having made up his title, moved the Lord Ordinary to sist him as a party to the process, and to pronounce decree of new in his favour as executor of Miss Monteath. The motion for decree was opposed by Mr Donald Lindsay, judicial factor on the trust estate of Mr Archibald Douglas Monteath, on the ground that since 1862 it had become doubtful whether the fund in media would be sufficient to pay all the claims upon it.
The Lord Ordinary (Jerviswoode) sisted Mr Spark, but refused the motion quoad ultra.
Mr Spark reclaimed.
The Court unanimously recalled the interlocutor of the Lord Ordinary, and pronounced decree of new in favour of Mr Spark as executor of Miss Monteath. They could not go back on the interlocutor of 1862, which was not only a decree of preference, but also for payment, and pronounced in foro. It was res judicata. When the parties to the action allowed that decree to be pronounced and to become final they took their chance of the consequences. If it should now turn out that they have undertaken too great a risk the result might be unfortunate but it was unavoidable.
Counsel for Reclaimer— Mr Burnet. Agents— Lindsay & Paterson, W.S.
Counsel for Respondent— Mr Adam. Agents— Lindsay, Howe, & Co., W.S.