Scottish Court of Session Decisions

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Cite as: [1872] SLR 9_269, [1872] ScotLR 9_269

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SCOTTISH_SLR_Court_of_Session

Page: 269↓

Court of Session Inner House First Division.

Saturday, February 3. 1872.

9 SLR 269

Sir William Stuart Forbes

v.

Lord Clinton and Others.

(Vide ante, vol. v. p. 593).

Subject_1Process
Subject_2Transference
Subject_331 and 32 Vict. c. 100, 96, 98.
Facts:

Where the merits of a cause had been exhausted in the Court of Session by a decree assoilzieing the defenders, who were also found entitled to expenses,—

Held that the cause was still depending in this Court so long as the expenses were not modified and decerned for, and that the pursuer was entitled, with the view of appealing to the House of Lords, to crave a transference of the cause against the heir of entail of one of the defenders, who had died in the meantime, though he had no interest in the depending question of expenses.

Headnote:

This action was originally raised in 1867 by Sir William Stuart Forbes of Pitsligo and Fettercairn against the Right Honourable Harriet Williamina Hepburn Stuart Forbes or Trefusis, Baroness Clinton and Saye, and against Baron Clinton as her husband, and for his own interest. The Court on 11th June 1868 pronounced an interlocutor assoilzieing the defenders from the conclusions of the action, and finding them entitled to expenses. No farther step was taken by either party to the action, the expenses were never taxed or modified, nor was the decree extracted. In the meantime Lady Clinton died, and was succeeded by her son the Honourable Charles Trefusis, a pupil, in the entailed estates of Fettercairn and others which had been the subject of the action.

The pursuer now lodged a minute of transference under the 96th and 98th sections of the Court of Session Act 1868, craving to have the action transferred against the said Honourable Charles Trefusis, and against Lord Clinton, his father, as his administrator-at-law. It was admitted that the sole object of the pursuer in asking to have the case transferred, was to take an appeal to the House of Lords—the expense of a transference in the House of Lords being much greater than in the Court of Session.

Lord Clinton appeared, and objected to the warrant of service of the summons authorised by sections 96 and 98 of the Court of Session Act being granted, on the ground that the merits of the cause were decided in this Court, and that he, both for himself and jure mariti in right of his wife, was the only person who had any interest in the question of expenses.

Fraser for the pursuer.

Solicitor-General (A. R. Clark) and Lee for Lord Clinton.

At advising—

Judgment:

Lord Deas—This was an action of reduction and declarator at the instance of Sir William Forbes against Lady Clinton, and her husband for his interest, the object being to reduce the titles made up by Lady Clinton under a certain entail. It is not necessary to follow in detail the course of the cause. It is sufficient to say that it ended in a judgment of the Inner House assoilzieing the defenders, and finding them entitled to expenses, which were remitted to the auditor to tax and report in the usual way. Before this was done,

Page: 270↓

however, Lady Clinton died, leaving a son who has now the substantial interest in the property which was at stake in the action. The question now is, whether the process is in such a state that it can be transferred against her son. I am humbly of opinion that the cause is a depending cause in the Court; that there is more still to be done in it; and that it is not material that one party only has an apparent interest to move in it. I am not able to doubt that, the pursuer is entitled if he choose to insist on getting in the auditor's report upon the defender's account of expenses, and bringing the case to an end. The pursuer has a legitimate interest in knowing how much these expenses are, and in objecting to have such an account of expenses kept hanging over his head for an indefinite time. Now the whole question that we have to do with here is, whether this is a depending cause or not. I think that, independently of the question of appeal to the House of Lords, either party is entitled to move in it. There may be, and no doubt is, a bona fide intention to appeal, and though it may be quite possible to get the case transferred in the House of Lords for that purpose, yet that is no reason why it should not be done here if the cause is still depending before us, and it certainly will be a saving of expense to the parties.

Lord Ardmillan concurred.

Lord Kinloch—I am of opinion that the objections to the proposed transference should be repelled. The action is very clearly a depending action. A finding of expenses has been pronounced, but the auditor's report has not been raturned, and in consequence no decree for expenses has been pronounced. And the process is not extractable. In this position of things Lady Clinton has died. I consider that, as a matter of course, the opposite party is entitled to have the action transferred against her heir in the estate now in question. I think the Court cannot inquire into the probable or possible judgments which may be afterwards pronounced. It would be, as I consider, most perilous to make the competency of the transference turn on a speculation as to these. The transference, I think, must follow on the fact of the dependence of the process. What may afterwards happen cannot anticipatively affect its competency.

Lord President—I have had some difficulty in deciding this question, arising from a technical objection, which presented itself with some force to my mind. But, on the whole, as your Lordships are agreed, I am not disposed to dissent.

I think it right, however, to explain the difficulty which I did feel. So far as the merits are concerned, the case has been exhausted in this Court. The question of expenses also has been determined up to a certain point. That is to say, the original defender has been found entitled to them, and the pursuer liable in them. The effect of that is, I think, to give Lord Clinton a right, and the only right, to ask decree for them when taxed against the pursuer or his representatives. The person against whom it is sought to transfer this cause has no interest whatever in the expenses, and no interest in any discussion that could now take place in this Court. The technical objection thus arises, that though he is a proper party in any appeal case that may be taken to the House of Lords, and must be made respondent there, he is not and cannot be made a proper party so far as any interest goes to the case while it remains in this Court. While I feel the force of this difficulty, I am not, however, disposed to differ from your Lordships.

The Court granted warrant, accordingly, to serve a copy of the summons in terms of the 96th section of the Court of Session Act 1868, and allowed six days to lodge a minute of objections if so advised.

Solicitors: Agents for the Pursuer— Adam & Sang, W.S.

Agents for Lord Clinton— Mackenzie & Kermack, W.S.

1872