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(Ante, vol. xxiv. p. 469.)
In a multiplepoinding raised by trustees to determine the right to a certain portion of a truster's estate the question in the competition was argued between the heir-at-law of the truster and one of four next-of-kin. As a result the latter secured a judgment that the fund was in great part moveable, but was found liable in certain expenses to the heir-at-law in respect of failure in certain contentions. The respective rights of the heir-at-law and the next of-kin having been thus determined, the three other next-of-kin lodged claims. Held that they could only be allowed to participate in the fund on condition of bearing equally with the next-of-kin who had litigated the question all the expenses incurred by him, including those in which he had been found liable to the heir-at-law, as the contentions in which he had failed were not of a reckless character.
Daniel Cowan, merchant, Broughty Ferry, died childless on 19th December 1881. In order to settle the rights of the heir-at-law and the next-of-kin to certain heritable property left by the deceased his trustees raised an action of multiplepoinding and exoneration. The question as to the right to the fund in medio was argued between James Cowan, the heir-at-law, and Henry Cowan, one of four next-of-kin. As a result of this competition Henry Cowan secured for the next-of-kin a large portion of the fund in medio, but was found liable in certain expenses to the claimant James Cowan.
After the respective rights of the heir-at-law and the next-of-kin had been determined claims were lodged by the other three next-of-kin, Mrs Margaret Cowan or Hodge, Mrs Catherine Cowan or Waddell, and David Scott Cowans.
The Lord Ordinary (
Trayner ) on 27th January 1888 pronounced the following interlocutor:—“Having heard counsel for the claimants, Ranks and prefers the claimant James Cowan to the sum of £45, 17s. 1d., with interest corresponding thereto since the date of consignation, being his share of the fund in medio in terms of the interlocutor pronounced by the First Division on the 19th March 1887: Finds the claimant Henry Cowan entitled to payment out of the fund in medio of the sum of £46, 12s., being three-fourths of the expenses in which he was found liable by the interlocutor of 20th May 1887, and three-fourths of the estimated expense incurred by him under the reclaiming-note: Further, ranks and prefers the claimants Henry Cowan, Mrs Margaret Cowan or Hodge, Mrs Catherine Cowan or Waddell, and David Scott Cowans, each to the extent of one-fourth of the balance of the fund in medio: Grants warrant to, authorises, and ordains the Union Bank of Scotland, Limited, Edinburgh, to make payment to the claimants of the sums to which they have been severally found entitled out of the sum consigned in their hands, conformPage: 10↓
to deposit-receipt, and the Accountant of Court to exhibit and deliver up the said receipt for the purpose of said payments, and decerns.” Against this interlocutor Henry Cowan reclaimed, and argued—The other next-of-kin should bear equally with him the expense of the litigation carried on for their benefit. That was the only condition upon which they should be allowed to participate in the fund won by him for their benefit. That condition should also apply to the expenses in which he had been found liable to James Cowan, as his failure there was an incident of the litigation above referred to, and his contentions had not been of a reckless character.
The respondents, the other next-of-kin, argued—That they should only have to share in the expenses incurred by the reclaimer where he had been successful. The authority of Morgan v. Morris ( cit. sub.) went no further than this. They were not under any obligation to contribute to the expense incurred by the reclaimer in maintaining untenable propositions.
Authorities— Morgan v. Morris, March 11, 1856, 18 D. 797–818; Binnie's Trustees v. Henry's Trustees, July 3, 1883, 10 R. 1075; Jaffe v. Carruthers, March 3, 1860, 22 D. 936.
At advising—
Now, the principle on which a question of this kind is to be solved, when all parties do not choose to come forward, but leave the question to be determined by the efforts of one of their number, is this—When they come in to the case they must bear their share of the expenses which the one who has litigated has incurred. That is a very obvious principle of equity, and in ordinary cases I think the way in which it is to be applied can be easily determined. In the present case the Lord Ordinary has found Henry Cowan, who came forward and fought the case for the next-of-kin, entitled to three-fourths of the expenses he has incurred out of the fund in medio. I do not see that that is consistent with the principle I have referred to. That principle requires one of two courses to be adopted. Either the incoming parties must pay over three-fourths of the expenses out of their own pockets, or the entire amount of the expenses must be deducted from the fund in medio. Either one or other of these courses is just and consistent with the principle referred to. The Lord Ordinary does not decide consistently with this principle when he finds that three-fourths of the expenses should be deducted from the fund in medio. He deducts the three-fourths which the parties coming in should contribute, but not the fourth, which is to be contributed by the claimant Henry Cowan. The principle is a very obvious one, and its application is, I think, not difficult. The only point of specialty in the present case is, that to a certain extent the successful litigant was unsuccessful. A reclaiming-note was presented against an interlocutor of the Lord Ordinary of date 9th November 1886, and under it he lost part of the fund in medio, and to that extent must be considered to have claimed too much. Now, it is said that he should bear the part of the expense incurred in supporting that claim. To that proposition I am not inclined to consent. No doubt it is possible to conceive a case of nimious and oppressive litigation where the litigant could not expect to be reimbursed for the expense he had incurred. The true view, I think, in estimating the expenses to be paid by parties coming in is, that when they ask to share in the fruits of a litigation they must bear the expense of any little mishap which may have occurred in the course of such litigation.
The only specialty in the case is the one referred to by your Lordship, namely, that Henry Cowan was wrong in part of his case. If his contentions had been reckless, then I should have held that he had no claim to be recouped for the expenses in putting them forward; but the argument he submitted was a fair one, and must be looked on as an incident of his pleading the case as he did, and those who take the benefit of his appearance must bear their fair share of the expenses he incurred.
The Court pronounced the following interlocutor:—
“The Lords having considered the reclaiming-note for Henry Cowan against Lord Trayner's interlocutor of date 27th January 1888, and heard counsel for the parties, Recal the said interlocutor reclaimed against in so far as it deals with the fund in medio falling to the next-of-kin: Find that the whole expenses incurred by the said reclaimer in the competition with James Cowan, the
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heir-at-law, including expenses for which the said reclaimer was found liable to said heir-at-law, fall to be paid to the reclaimer out of the fund in medio: Find the reclaimer entitled to expenses since the date of the Lord Ordinary's interlocutor reclaimed against, and of consent rank and prefer the said Henry Cowan to the sum of £143, being his share of the fund in medio, and the amount of the expenses to which he has been found entitled under the first and second findings of this interlocutor, as the same have been adjusted by the counsel for the parties: Further, of consent rank and prefer the claimants Mrs Margaret Cowan or Hodge, Mrs Catherine Cowan or Waddell, and David Scott Cowans, each to the extent of one-third of the balance of the fund in medio.”
Counsel for the Reclaimer— Sir C. Pearson. Agents— Reid & Guild, W.S.
Counsel for the Respondents— Graham Murray—Salvesen. Agent— J. Smith Clark, S.S.C.