Scottish Court of Session Decisions

On 23d June 1868 a petition was presented by James Monteith, Trustee on the estate of the late Peter Sawers, praying the Court to sequestrate the estate and appoint a judicial factor. the petition was opposed by the Rev. Peter Sawers, the only other trustee on the estate. On 5th November 1868 the lord ordinary refused the petition, and found the Rev. Peter Sawers entitled to modified expenses. the petitioner appealed to the second Division, who, after a remit to the Sheriff of renfrew, and report from him on 18th march 1869, recalled the interlocutor of the Lord Ordinary, appointed a judicial factor, and found the petitioner entitled to expenses out of the trust-estate.

The respondent appealed to the House of Lords.

On 23d February 1872 the House of Lords ordered the interlocutor of the Second Division to be reversed, “and further, ordered that the costs decerned for payment out of the trust-estate shall, if the same have been paid or retained, be repaid to the said trust-estate, with interest, and further, ordered that the said cause be remitted back to the Court of Session, to do therein as shall be just and consistent with this judgment.”

The respondent in the original petition now presented a petition craving the Court to apply the judgment of the House of Lords—“to alter the interlocutors appealed from, in terms of said judgment, to dismiss the reclaiming petition for the late James Monteith, to affirm the interlocutor of the Lord Ordinary of 5th November 1868, and to refuse the prayer of the petition for the appointment of a judicial factor; and also to ordain the respondents to repeal and pay back the costs, amounting to £93, 18s. 2d., decerned for under the said interlocutor of 14th July 1869, if the same have been paid or retained, with interest thereof at five per cent, from the date thereof, to the said trust-estate, and to find the petitioner entitled to the expenses of process since the date of the Lord Ordinary's interlocutor of 5th November 1868, including the expenses of the present application; to remit the account thereof, when lodged, to the Auditor to tax and report, and to decern in the petitioner's favour for the taxed amount against the said Hugh M'Connell and John Petrie, as trustees of the late James Monteith, or to do farther or otherwise as to your Lordships shall seem proper.”

The representatives of the petitioner in the original petition, who had been sisted in the petition in June 1869, appeared as respondents, and argued that as the House of Lords had not mentioned the matter of expenses in their judgment, it was not competent for the Court to find the petitioner entitled to his expenses since the date of the Lord Ordinary's interlocutor, and also, that it was not a case for an award of expenses.

Authorities cited— Campbell v. Colquhoun, Dec. 20, 1854, 17 D. 245; Hay, 17 D. 246; Purves, 7 D. 810; Stewart v. Scott, 14 S. 692.

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