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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Cruickshank v. Smart [1870] ScotLR 7_286 (5 February 1870)
URL: http://www.bailii.org/scot/cases/ScotCS/1870/07SLR0286.html
Cite as: [1870] ScotLR 7_286, [1870] SLR 7_286
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SCOTTISH_SLR_Court_of_Session
Page: 286↓
Court of Session Inner House First Division.
v.
Facts:
Held ( diss. Lord Kinloch) final judgment means judgment on the merits, not the last judgment in the cause; and decree for expenses, when given separately, may be extracted and a charge given thereon immediately, if twenty days have elapsed since judgment was given on the merits.
On 18th May 1869 the Sheriff-Substitute of Aberdeenshire ( Skelton) pronounced an interlocutor
Page: 287↓
assoilzieing John Smart from the conclusions of an action against him, in which James Cruick-Bhank, writer, Fraserburgh, was pursuer; and finding Smart entitled to expenses of process, subject to modification. On 14th June 1869 the Sheriff ( Jameson) dismissed Cruiekshauk's appeal, and adhered to the interlocutor of the Sheriff-Substitute. On 9th September 1869 the Sheriff-Substitute heard parties' procurators on the question of modification of expenses, and modified them to £23,19s. 3d. On 12th November 1869 the Sheriff dismissed the appeal of Cruicksliank, allowed the sum of £3, 8s. 1d. to be deducted from the amount of the taxed expenses, and decerned against Cruickshank for payment of £21, 9s. 3d., and for 8s. as expense of extracting the decrees in said action. Cruicksliank intimated to the Sheriff-Clerk-Depute at Peter head and to the agents of Smart, verbally and in writing, his intention to appeal against all the judgments. On 17th November 1869, five days after the date of the last interlocutor, Smart obtained an extract of the decrees, and charged Cruickshank for payment of £31, 9s. 3d., and 8s. as expense of extracting the decree. On 6th December 1869 Cruickshank lodged a note of suspension, praying the Lord Ordinary on the Bills to suspend the decree. The 68th section of the Court of Session Act 1868 enacts “that a party may take an appeal within the space of twenty days after the date of the judgment of which he complains, during which period of twenty days extract shall not be competent; but on the expiration of the foresaid period, if no appeal shall have been taken, the Clerk of Court may give out the extract, it being competent, however, to take such appeal at any time within six months from the date of final judgment in the cause, unless the judgment has been previously extracted or implemented.” The complainer contended that under that section, it being incompetent to extract the decree within less than twenty days from the last interlocutor, and the decree here having been extracted only five days after the interlocutor awarding expenses, it was incompetently extracted, the charge following on it was incompetent, and the decree and charge should be suspended. The Lord Ordinary on the Bills ( Ormidale) passed the note.
The respondent reclaimed.
Shand and Asher for him.
Scott in answer.
At advising—
The majority of the Court held the extract of the decree, and the charge thereon, perfectly competent. Final judgment meant judgment on the merits, not the last interlocutor in the cause. This view cohered with the various enactments on the subject, while the opposite view could not be reconciled to them. The first enactment was 50 Geo. III., chap. 112, but as doubts arose as to what was meant by “final judgment” under it, the phrase was defined in section 1 of the Act of Sederunt of 1828. By it a final judgment was declared to mean one “where the whole merits of the cause had been disposed of, although no decision has been given as to expenses; or, if expenses have been found due, although they have not been modified or decerned for.” Then came the Judicature Act (6 George IV., 120), by the 43d section of which it was provided that a party should have fifteen days after final judgment, during which he might present a bill of advocation, and before the expiry of which extract was incompetent. It was impossible to suppose that final judgment did not mean the same in both enactments. It was said the Act of Sederunt was ultra vires of the Court. If so, it had certainly received a great deal of sanction by time and inveterate usage. Then same the Act of Sederunt following the Sheriff-Courts Act of 1839, by which extract was allowed after six free days had elapsed since the interlocutor on the merits, forty-eight hours having also expired since the modification of expenses. And by the following section, the 114th, extract was not to be competent for fifteen days after final judgment where the intention to advocate had been intimated. This was the ruling enactment till the Act of 1868, when the time before which extract was incompetent was changed to twenty days.
The question before us is, whether extract of the decree of 12th November 1869 was taken prematurely, having been taken before the expiry of twenty days from the date of the decree. This question is mainly to be determined by the provisions of the Court of Session Act 1868. But, in construing this Act, regard is rightly to be had to the terms of previous enactments.
By the Judicature Act of 1825, section 43, it is enacted that, when intimation is given of an intention to advocate “the space of fifteen days in the ordinary case, and thirty days in causes before the Courts of Orkney and Shetland, shall be allowed after final judgment to apply by bill of advocation to the Court of Session before extract shall be competent; but on the elapse of the foresaid terms respectively, if no bill of advocation shall have been intimated to the Clerk of Court, be may give out the extract on the application of either party, it being competent, however, to present a bill of advocation at any time before the decree has been actually extracted.” By this enactment the time allowed for advocation and the time allowed for extract rightly run together. The time is fifteen days in the ordinary case, and thirty days in Orkney and Shetland; “after final judgment:” and I cannot doubt that, under this provision of the Judicature Act, advocation was competent within the specified period from and after the last judgment in the cause, whether on the merits or expenses; and that extract was superseded during the time thus allowed for advocation. I can see no ground for limiting, at this period, the term “final judgment” to any other than its usual and recognised interpretation.
By the Act of Sederunt 1828, the Court declared “that a judgment shall be reckoned a final one, to the effect of admitting advocation, when the whole merits of the cause have been disposed of, although no decision has been given as to expenses, or if expenses have been found due, although they have not been modified or decerned for.” By this enactment, there is, unquestionably, a power given to advocate so soon as there is judgment on the merits, without the expenses being disposed of. But I do not think it was intended by the Court, and I think it would have been beyond their competence, to exclude review by advocation of the judgments as to expenses, if the party was willing to wait till these were pronounced, and did not wish to advocate sooner. There is a liberty to advocate at an earlier stage;
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There comes to be next considered the Act of Sederunt for the Sheriff-courts of 1839 the 113th and 114th sections of which bear reference to the present subject. The 113th section declares in general terms—“Decrees may be extracted after the expiry of six free days from the day when the interlocutor is pronounced on the merits, forty-eight hours having also expired after the modification of expenses in litigated causes.” Power is given to the Sheriff to extend or shorten this period, according to circumstances. The 114th section provides that where an intention to advocate the cause shall be intimated in writing to the clerk, and a bond of caution is lodged, fifteen days (or thirty in Orkney and Shetland) “shall be allowed after final judgment to apply by note of advocation to the Court of Session before extract is competent.” After this period the clerk is empowered to “give out the extract on the application of either party.”
I have found considerable difficulty in construing the enactments in this Act of Sederunt satisfactorily. The first and general provision allows extract in six days, but adds “forty-eight hours having also expired after the modification of expenses in litigated causes.” In other words, it seems declared that extract shall never take place in litigated causes till forty-eight hours after the modification of expenses. The 114th section allows fifteen days “after final judgment” for advocation when intention to advocate is intimated, during which time extract is suspended, but at the end of which it is declared that extract shall go out. From what date are these fifteen days to run? The charger says from the date of the judgment on the merits, apart from expenses. But supposing it to be so, still there can be no extract at the end of the fifteen days if under the Act of Sederunt there cannot be extract taken in any litigated case till forty-eight hours after the modification of expenses. If, again, the fifteen days have expired when the decree modifying expenses is pronounced, the whole time for advocation seems reduced to forty-eight hours. I confess I have great difficulty in threading my way through the provisions now referred to, in which the time for extract and the time for advocation do not satisfactorily accord.
But I do not further dwell on this Act of Sederunt, nor stay to notice the Act 1853, which adds nothing; because all difficulties appear to me to be removed by the terms of the recent Court of Session Act 1808, which brings, I think, matters back to the simplicity and harmony of the Judicature Act. By the 64th section of this Act of 1868, the process of advocation is abolished, and thereby was also abolished whatever was connected with it merely in the way of process. Appeal is by the 65th section substituted where advocation was formerly competent; and by section 65 it is declared: “a party may take an appeal within the space of twenty days after the date of the judgment of which he complains; during which period of twenty days extract shall not be competent; but on the expiration of the foresaid period, if no appeal shall be taken, the Clerk of Court may give out the extract.” I think the terms of this clause plainly prevent extract going out till twenty days after the date of the last judgment in the cause, whether on the merits or expenses; for every judgment down to the very last may be complained of, and whether it will be complained of or not, cannot be known till it be pronounced. The provision as to forty-eight hours after modification of expenses is now not repeated, fur the simple reason that twenty days are allowed for appealing from the date of the judgment decerning for expenses, and twenty days comprehend forty-eight hours. There may still remain the privilege of appealing when the judgment on the merits has been pronounced, without waiting for the modification of expenses; for the view which I take does not necessarily abolish the privilege. But it appears to me simply a privilege, not a necessity. I am of opinion that if the party does not appeal at that stage, but waits till the cause is exhausted by the judgments on expenses, he is, in the first place, entitled to appeal against the whole judgments together; and, in the second place, has twenty days from the date of the last judgment to do so, during which period extract cannot be taken.
To hold anything else than this involves the immediate consequence that whenever a judgment is pronounced on the merits, and twenty days have run, it is in the power of either party, and certainly of the party in whose favour the judgment was pronounced, by taking extract of the judgment, to prevent all discussion whatever on the question of expenses; and not only so, but to prevent all appeal of the cause, because after extract no appeal is competent. The other party may be quietly awaiting the discussion of expenses, content to appeal the whole judgments in the case together, and he finds on the 21st day, not only all discussion cut short in the matter of expenses, but his whole right of appeal taken away from him, even on the merits of the case. It is no sufficient answer to say that the party taking extract may, if he please, abandon his own claim for expenses. There may be a serious claim for expenses on the part of his antagonist, although unsuccessful on the merits. The judgment may have merely appointed parties to be heard on the question of expenses; and the party unsuccessful on the merits may conceive that he has a valid demand for the whole expenses in the cause, which have been sometimes so given. But according to the doctrine of the charger, his antagonist may, by taking extract, prevent all discussion of his claim; and not only so, but at the same time cut off all his appeal on the merits, leaving him to the remedy of reduction or whatever other remedy is open.
I cannot read the Act as importing even the possibility of results such as these. It may be that the statute leaves entire the privilege of appealing when the judgment is pronounced on the merits without awaiting the discussion of expenses. But I see no ground whatever for holding that it is compulsory to appeal at this stage. It may be often in the highest degree expedient that the case should not be appealed till all the judgments are pronounced in it, both on merits and expenses. Of every one of these judgments, down to the very
Page: 289↓
The view which I have now expressed seems confirmed by the provision in the 67th section of the recent statute, that “it shall not be competent to take or sign any note of appeal after the expiration of six months from the date of final judgment, in any cause depending before the Sheriff or other inferior Court, or Judge, even although that judgment has not been extracted. ” There is here an absolute limitation of appeal, whether extract has been taken or not. Appeal is to be absolutely precluded after six months “from the date of final judgment.” Here, again, comes the question, from what date does this limitation begin running? or, in other words, what does “final judgment” mean? It cannot be the judgment on the merits apart from any after judgments on expenses. For it may conceivably happen that more than six months may elapse between the judgments on the merits and the final judgment on expenses; and in this case the period of limitation would have entirely run, and the right of appeal have been gone, whilst the process was still depending in Court. The statutory limitation cannot be reasonably supposed to have commenced running until all the judgments have been pronounced which may competently be complained of to the higher Court. In other words, the period of limitation does not begin running till the process competent to be appealed is at an end. This interprets the term “final judgment” in the 67th section to mean the last judgment in the cause, whether on the merits or expenses. And the term “judgment of which he complains,” as used in the 65th section, cannot have a different or more restricted signification.
I am of opinion that in the present case the extract was taken prematurely, and that the Lord Ordinary did right in passing the note of suspension.
Solicitors: Agent for Suspender— David Milne, S.S.C.
Agent for Despondent — Alexander Morison, S.S.C.