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Cite as: [1872] ScotLR 9_209, [1872] SLR 9_209

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Friday, January 12. 1872.

9 SLR 209

Bannatine's Trs.

v.

Cunninghame.

(Ante, vol. v., p, 516, 641.)

Subject_1Process
Subject_2Reclaiming-Note
Subject_3Judicature Act (6 Geo. IV, c. 120), § 17
Subject_4Court of Session Act (31 and 32 Vict.c. 100), §§ 52, 53, and 54.
Facts:

The Lord Ordinary on 15th July 1871 pronounced an interlocutor, which, in connection with a previous interlocutor, disposed of the whole merits of a cause, and by which he appointed the cause to be put to the roll for the disposal of the question of expenses; and by an interlocutor, dated 2d November 1871, he found the pursuers entitled to expenses. Held that a reclaiming-note presented by the defender on the 10th November against the interlocutor of 2d Movember, competently brought under the review of the Inner House, not only the interlocutor of 2d November, but the interlocutor of 15th July and previous interlocutor.

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Subject_Succession — Apportionment Act (4 and 5 William IV, c. 22.
Facts:

Held that the Apportionment Act does not regulate the succession of a fee-simple proprietor, but applies only to the case of a party having a terminable interest in an estate.

Subject_Negotiorum Gestio.
Facts:

Where a person, from friendship and the necessity of the case, takes upon him the management of affairs which require immediate execution, he is accountable only for gross omissions.

Headnote:

By marriage-contract, between the defender and his deceased wife Mrs Allason Cunninghame, proprietrix of the estate of Logan, the defender renounced and made over to her his jus mariti and right of administering her estates, heritable and moveable. Mrs Cunninghame conveyed by the marriage contract to the defender “for his liferent use thereof allenarly during all the days of his life after her death,” her estate of Logan. By her disposition and settlement she afterwards conveyed to the late Richard Bannatine the estate of Logan, subject to the liferent of the defender; and also her whole heritable and moveable estate; and she appointed Mr Bannatine to be her sole executor.

Mrs Allason Cunninghame died on 20th March 1851. Mr Bannatine was then a staff-surgeon in New Zealand. Copies of Mrs Cunningliame's testamentary writings were sent out to him by her agent, and Mr Bannatine was requested to send home a power of attorney to enable some person to act for him. After a good deal of delay Mr Bannatine, in 1853, sent home a power of attorney in favour of the defender, who had in fact previously taken upon himself to act where it was necessary for Mr Bannatine. Mr Bannatine returned home in 1854, and resided at Glassnock, about four miles from Logan, till his death in 1867.

During his life Mr Bannatine does not appear to have raised any question as to Mr Cunninghame's actings in regard to Mrs Cunninghame's executry, but after his death Mr Bannatine's trustees brought an action of count and reckoning against the defender, which has already been the subject of much litigation. The summons concludes for an accounting against him in two capacities—(1) as factor and commissioner for the late Richard Bannatine, and (2) as an individual, for intromissions with the rents of Logan, due and current at the time of Mrs Cunninghame's death.

On the 18th November 1870 the Lord Ordinary ( Mackenzie) pronounced an interlocutor:—“Finds that the late Mrs Allason Cunninghame having died on 20th March 1851, the late Richard Bannatine, as her executor, became entitled—1st, To the agricultural rents of the estate of Logan for the crop and year 1850, and to all the antecedent rents; 2d, to the proportion corresponding to the period of Mrs Allason Cunninghame's survivance, from 11th November 1850 to 20th March 1851 inclusive, of the first moiety of the agricultural rents for crop and year 1851 inclusive, which were legally due at Whitsunday 1851, although by convention payable only at the term of Martinmas following; 3d, to the mineral rents or royalties payable at Martinmas 1850; and, 4th, to the proportion of the mineral rents or royalties for the half-year ending at Whitsunday 1851, and then payable, corresponding to the period of Mrs Allason Cunninghame's survivance, from 11th November 1850 to 20th March 1851 inclusive, all just allowances and deductions in respect of charges on such rents and royalties being made: Reserves all questions of expenses, and of new remits the cause to Mr Alexander Weir Robertson, C.A. to proceed with the remit made to him by the interlocutor of 2d February 1870.”

Note.—(After a narrative of the facts.)—“The Lord Ordinary is of opinion that Mrs Allason Cunninghame having survived the legal term of Martinmas 1850, there vested in her by such survivance, and descended to her executor, the whole rents of the estate for that year, including the mineral rents and all antecedent rents, although some of these rents, by convention, may not have become payable until after her death.

“As regards the rents of the estate, including the mineral rents for the half-year current at Mrs Allason Cunninghame's death, the Lord Ordinary is of opinion that Mr Bannatine, as her executor, is entitled to a share of these rents corresponding to the period of her survivance after the term of Martinmas 1850. He considers that the provisions of the Apportionment Act, 4 and 5 William IV, chapter 22, regulate this matter. The terms of the marriage-contract, by which the liferent of the estate of Logan is conferred upon the defender, are also in favour of this view.—See Erskine, 2, 9, 64, and 67; Campbell, 6 D. 1426; Blackie v. Farquharson, ib. 1456; Weir's Executors v. Durham, 8 Macph. 725.”

A report was accordingly issued by Mr A. W. Robertson, in obedience to the remit of the Lord Ordinary, bringing out a balance, including interest, of £2304, 7s. 10d. against the defender as at 8th January 1869. A number of objections were taken by the defender to the report, which it is unnecessary to go into in detail. Most of them involved the amount of diligence incumbent on the defender in his actings as negotiorum gestor for Mr Bannatine. The accountant debited him with all sums received as rents falling under the interlocutor of the Lord Ordinary, which were entered in the rental book of the estate of Logan, and refused to give him credit for sums entered in the same book as incurred to tenants, and entered in the rental book as payments to account of rents, after the date of Mrs Cunninghame's death, no vouchers being produced either to instruct the sums, or to show that the accounts were incurred before the date of her death. Certain arrears of rents were noted as abandoned in the rental book. These the accountant held the defender was not entitled to abandon without doing exact diligence, and accordingly debited him with the amount.

On the 15th July 1871 the Lord Ordinary pronounced an interlocutor, in which he repelled the defender's objections to the accountant's report, with one exception; decerned against the defender for the balance; and appointed the case to be put to the roll for the disposal of the question of expenses.

On the 2d November his Lordship pronounced the following interlocutor:—

“ Edinburgh, 2d November 1871.—The Lord Ordinary having heard counsel on the question of expenses, and considered the process, finds the pursuers entitled to expenses, subject to modification; allows an account of said expenses to be given in, and remits the same, when lodged, to the auditor to tax and to report.”

Against the interlocutor of 2d November 1871 the defender obtained leave to reclaim. He cordingly,
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on the 10th November, lodged a reclaiming-note, admittedly for the purpose of bringing under review, not only the interlocutor of 2d November 1871, but the previous interlocutors of 18th November 1870, and 15th July 1871. A debate on the competency took place, turning chiefly on the construction of 6 Geo. IV, c. 120 (Judicature Act), I 17, and 31 and 32 Vict. c. 100, (Court of Session Act, 1868,) §§ 52, 53, 54.

Millar, Q.C., and Crichtion objected to the competency of the reclaiming-note to bring under review the interlocutor of 15th July 1871, and preceding interlocutors. The interlocutor of 15th July had, taken along with the previous interlocutor, disposed of the whole merits of the case, and therefore a reclaiming-note could and ought to have been taken within twenty-one days. This not having been done, that interlocutor is now final.

Solicitor-General and Marshall for the defender.

At advising, on the question of competency—

Judgment:

Lord President—There is no dispute that the interlocutor of 15th July 1871 disposes of the whole merits of the cause in the language of section 17 of the Judicature Act, 1825, or that, taken along with a previous interlocutor, it disposes of the whole subject-matter of the cause in the language of section 53 of the Court of Session Act, 1868. This interlocutor of 15th July appoints the cause to be put to the roll for the disposal of the question of expenses. The cause having been put to the roll, the Lord Ordinary, on the 2d November, finds the pursuers entitled to expenses, subject to modification. This mode of dealing with the question of expenses is not strictly in accordance with section 17 of the Judicature Act. That section enacts—“that in pronouncing judgment on the merits of the cause, the Lord Ordinary shall also determine the matter of expenses, so far as not already settled, either giving or refusing the same in whole or in part.” This section has been the subject of construction by decisions. It has been held that if the Lord Ordinary says nothing about expenses, he is not violating the rule, but is held as refusing expenses to either party. It is further held that if he reserves the question of expenses, that is consistent with section 17: he does in two interlocutors what the statue apparently requires him to do in one. This is what the Lord Ordinary has substantially done here. The question comes to be, whether the interlocutor of 15th July 1871 is an interlocutor which so entirely exhausts the cause that it is within the meaning of section 53 of the Act of 1868. The object of the Act of 1868 was to diminish the number of reclaiming-notes as much as possible. If an interlocutor disposing of the merits, but reserving the question of expenses, must be reclaimed against within a certain number of days, or else become final, then at the end of every cause in which such an interlocutor is pronounced there must be two reclaiming-notes. That would certainly defeat the object of the statute. But everything depends on the meaning of section 53. It provides that it shall be held that the whole cause has been decided in the Outer House although judgment shall not have been pronounced upon all the questions of law or fact raised in the cause. So far, I do not think that any of the expressions used in this clause have reference to the question of expenses. I do not think that the question of expenses can be held to be “one of the questions of law or fact raised in the cause.” But the present question depends rather on the words which immediately follow; and it appears to me that in those expressions the Legislature must have had in view section 17 of the Judicature Act. The words which follow are, “but it shall not prevent a clause from being held as so decided that expenses, if found due, have not been taxed, modified, or decerned for.” I think there are just two alternatives before the mind of the Legislature, viz., the case in which expenses are found due, and the case where expenses are found not due. The 17th section of the Act of Geo. IV. specifies “giving” or “refusing” expenses. The new Act says that if expenses are found due it shall not prevent the cause from being held to be decided in the Outer-House that the expenses have not been taxed, modified, or decerned for. In the case where expenses are found not due there is no necessity for any provision. There is nothing more to be done, not only in the meaning of the Act, but in every possible meaning; the Lord Ordinary cannot possibly pronounce another interlocutor. The alternatives being that the expenses have been found due, or found not due, the framer of the statute leaves the case where they are found not due to work itself out, and confines his directions to the case where they are found due.

But here occurs the case in which expenses are neither “given” nor “refused,” neither “found due,” nor “found not due,” but are left in this position that the Lord Ordinary says, “I want to hear further argument before I put the final stroke to my judgment.” Until the Lord Ordinary has done so he has not done all that was contemplated either by section 17 of the old Act, or section 53 of the new Act. If it was imperative on the party to reclaim against the interlocutor disposing of the merits, there would be the further necessity of reclaiming against the interlocutor awarding expenses. The contemplation of the statute is that only one interlocutor, other than those pronounced in the preparation of the cause as provided for by section 28, can be reclaimed against without leave. The result is that the interlocutor disposing of the merits of the cause is incomplete, but may be made complete by the subsequent interlocutor, and the two interlocutors together make such a judgment as was contemplated either by the old or the new statute. Then comes in the operation of section 52 of the Act of 1868, that a reclaiming-note against the interlocutor of 2d November brings up the interlocutor of 15th July, and every other interlocutor which has not been reclaimed against, for that exception is plainly implied. The words of section 52 are so broad and comprehensive that, if this is a competent reclaiming-note against the interlocutor of 2d November, it brings up the whole prior interlocutors. Is this, then, an incompetent reclaiming-note altogether? That has not been contended. I am therefore of opinion that the objection to this reclaiming-note, as a process of review of the interlocutor of 15th July, is bad.

The other Judges concurred.

The Court accordingly found that the reclaiming-note against the interlocutor of 2d November 1871 competently brought under review the interlocutors of 18th November 1870 and 15th June 1871.

Parties were then heard on the merits.

Judgment:

Solicitor-General and Marshall, for the defender, maintained that the Apportionment Act (4 and 5 Will. IV, c. 22) applied only to the succession of parties who had a limited interest in a

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state, and was not intended to regulate the division of the succession of a fee-simple proprietor. This has been expressly decided in England, on grounds that must be conclusive here. Accordingly no part of the rents legally due at Whitsunday 1851 fell into Mrs Cuninghame's executry.

Authorities— Browne v. Amyot, March 22, 1844, 3 Hare's Chancery Reports, 173; in re Clulow's Estate, April 28, 1857. 3 Kay & Johnston's Chancery Reports, 689. The same construction is implied in Baillie v. Lockhart, April 23, 1855, 2 M'Q. 258.

On the diligence incumbent on a negotiorum gestor they referred to Erskine, b. iii, t. 3, sec. 53. “Where the gestor, from friendship and the necessity of the case, takes upon him the direction of an affair which requires immediate execution, he is accountable only for gross omissions;” so Bell's Prin. 540. This was the measure of responsibility to be applied to the defender. It is sufficient if he account for actual receipts; and the rental book, which proves the charge against him, must be taken with its qualifications.

The Court gave effect to both contentions on the part of the defender, and remitted the cause back to the Accountant to report accordingly.

Solicitors: Agent for Pursuers— W. K. Thwaites, S.S.C.

Agents for Defender— A. & A. Campbell, W.S.

1872