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Cite as: [1883] ScotLR 20_723, [1883] SLR 20_723

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SCOTTISH_SLR_Court_of_Session

Page: 723↓

Court of Session Inner House First Division.

Tuesday, July 3. 1883.

[ Lord Kinnear, Ordinary.

20 SLR 723

M.P.—Anderson and Others

v.

Hollebone.

Subject_1Process
Subject_2Multiplepoinding
Subject_3Lodging Claim
Subject_4Reclaiming-Note.
Facts:

In a multiplepoinding a reclaiming-note against a judgment of the Lord Ordinary approving of a condescendence of the fund for the raisers, and in respect of a joint minute for the claimants then competing, ranking them in certain proportions, was presented by two sets of reclaimers. One set had appeared in the Outer House and lodged a claim which was afterwards withdrawn; the other had never appeared in the process. The Court allowed the reclaimers to lodge condescendences and claims on payment of all expenses not available at future stages of the cause.

Headnote:

In this action of multiplepoinding the Lord Ordinary pronounced an interlocutor approving of the condescendence of the fund, and in respect of a joint minute for certain claimants, ranking and preferring them upon the fund in medio. A reclaiming note was then presented by (1) Matthew Henry and another, the trustees acting under the marriage-contract entered into between E. W. Henry and Mary Guthrie Craig, and the children of the said E. W. Henry and Mary Guthrie Craig; and (2) Robert Anderson and others, trustees under the contract of marriage between James Brook and Isabella Craig, and the said James Brook as tutor-at-law for his pupil children. The first set of reclaimers had been called in the action, had appeared in the Outer House, and had lodged a claim, which was, however, afterwards withdrawn. The second set of reclaimers had also been called, the pupil children being represented by their tutor-at-law, but had never lodged a claim or appeared in the process.

The reclaimers now asked to be allowed to lodge claims.

Authorities— Duncan's Factor v. Duncan, June 3, 1874, 1 R. 964; Beveridge on Process, i. 383; clyne v. Reid, July 5, 1828, 6 S. 1085; Dinsdale v. Ware, December 17, 1829, 8 S. 262; Johnstone v. Elder, January 17, 1832, 10 S. 195; Morgan v. Morris, March 11, 1856, 18 D. 797; Shand's Practice, 600.

The respondents objected— Gallie v. Wylie, January 25, 1845, 7 D. 301; Jaffe'6 v. Carruthers, March 3,1860, 22 D. 936; Geikie v. Morris (Lord Chancellor in 3 Macq. 353).

At advising—

Judgment:

Lord President—I am satisfied that according to the practice of this Court, and indeed according to express decision, we are bound to let in the claims of these reclaimers. The two sets are in a different position, for the one set, consisting of these pupil children, who are represented by their tutor-at-law, never appeared in the process in the Outer House; they did not appear because they were not cited; but whether they were cited or not is of little moment, for the point is that they did not appear. The other set did lodge a claim at the commencement of the process, but it was withdrawn before the record was closed, so that the only closed record in the case is one in a competition between the parties whose claims were sustained by the interlocutor of 26 th May. There is no competition and no decision in this case between those who are preferred by that interlocutor and any other claimants. The object of this reclaiming-note is to have such a competition between the parties who have been preferred to the entire fund and the parties who have now come forward as claimants. And the fund being still in the hands of the Court, I do not think we can refuse these claims, but at the same time they cannot be received except upon such conditions as the Court think reasonable.

I think the course we should take is to recal in hoc statu the interlocutor of the Lord Ordinary, and remit to his Lordship to receive these claims, but on condition of the claimants paying all expenses incurred by the respondents, which shall not be available for the subsequent stages of the case. That was the condition considered reasonable in the case of Jaffe' v. Carruthers, and I think we should follow the rule laid down in that

Page: 724↓

case, leaving it to the Lord Ordinary, who is much better able than we are, to determine what the amount of those expenses should be.

Lords Deas, Mure, and Shand concurred.

The Court pronounced the following interlocutor:—

“The Lords having heard counsel on the reclaiming-note for Matthew Henry and others against Lord Kinnear's interlocutor of 26th May 1883, Recal the interlocutor in hoc statu, and remit to the Lord Ordinary to receive the condescendences and claims tendered by the reclaimers on payment of all expenses hitherto incurred by the respondents, which will not be available at the future stages of the cause; But find no expenses due in respect of the discussion in the Inner House: And remit to the Auditor to tax the account of the said first-mentioned expenses, and to report to the Lord Ordinary, and remit to his Lordship to decern for said expenses when taxed.”

Counsel:

Counsel for Reclaimers and Claimants Matthew Henry and Others— M'Kechnie. Agents — Ronald & Ritchie, S. S. C.

Counsel for Reclaimers and Claimants Robert Anderson and Others— Jameson. Agents — Ronald & Ritchie, S. S. C.

Counsel for Respondents and Claimants Mr Anderson and Another— J. P. B. Robertson— Dickson. Agent— A. Morison, S.S.C.

Counsel for Respondent and Claimant the Curator ad litem to Bertha Mackenzie— Mackintosh-Graham Murray Agents — Mackenzie & Black, W.S.
1883