Scottish Court of Session Decisions

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Cite as: [1889] ScotLR 26_656, [1889] SLR 26_656

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SCOTTISH_SLR_Court_of_Session

Page: 656↓

Court of Session Inner House First Division.

Saturday, July 6. 1889.

[ Lord Trayner, Ordinary.

26 SLR 656

Stewart

v.

Guthrie and Others.

Subject_1Process
Subject_2Reclaiming
Subject_3note
Subject_4Competence — court of Session Act 1868, secs. 53, 54.
Facts:

An interlocutor repelling an objection to the competency of a multiplepoinding on the ground that there has been no double distress can only be reclaimed against within ten days, and with the leave of the Lord Ordinary.

Headnote:

This was an action of multiplepoinding and exoneration raised by Charles Frederick Crewes, Bank of Victoria, Melbourne, and his attorneys in this country. The pursuer and nominal raiser was Robert Stewart, solicitor, Glasgow, judical factor on the trust-estate of the deceased William Rae Wilson of Kelvinbank, near Glasgow. Charles Frederick Crewes, the real raiser, and a number of other persons were called as defenders. The nominal raiser and holder of the fund lodged objections to the competency of the action on the ground that he had not been doubly distressed, and the record was closed on the summons and objections.

On 20th February 1889 the Lord Ordinary ( Trayner) pronounced this interlocutor:—“Repels the objections to the competency of the multiplepoinding, and appoints claimants on the fund in medio to lodge their condescendences and claims within the next fourteen days, reserving all questions of expenses: Further appoints intimation of the dependence of this action to be made to all concerned by advertisement twice for two successive weeks in the Scotsman and Glasgow Herald newspapers.”

On 14th June the Lord Ordinary pronounced this interlocutor:—“Finds the real raiser entitled to the expenses of raising and executing this cause, bringing the same into Court, and conducting it, and remits the account thereof, when lodged, to the Auditor to tax and report: Finds Stewart, the judicial factor, liable in expenses in connection with the preliminary defences, and remits the account thereof, when lodged, to the Auditor, to tax and report.”

Against this interlocutor the nominal raiser and pursuer reclaimed, but the reclaiming-note was not lodged till July 5th.

The respondent, the real raiser, objected to the competency of the reclaiming-note, on the ground that the interlocutor reclaimed against disposed merely of preliminary defences, and was in no sense a final interlocutor, and therefore could only be reclaimed against with the leave of the Lord Ordinary, and within ten days — Court of Session Act 1850 (13 and 14 Vict. cap. 36), sec. 11; Court of Session Act 1868 (31 and 32 Vict. cap. 100), secs. 52, 53, and 54.

The reclaimer argued—That a multiplepoinding was a congeries of actions. The Lord Ordinary's interlocutors disposed of the only question in the cause on which the record had been closed, viz., the question of double distress— Walker's Trustee v. Walker, February 20, 1878, 5 R. 678.

At advising—

Judgment:

Lord President—The real raiser of this multiplepoinding is not the holder of the fund, but a person who is going to claim in the competition, and who is called as a defender. The nominal raiser, and the holder of the fund, is the judicial factor on the trust-estate of the deceased William Rae Wilson. There are a number of other persons called as defenders besides the real raiser, who are supposed to have an interest in the fund.

The nominal raiser was of opinion that he had not been doubly distressed, and he lodged an objection or preliminary defence to the competency of the action, and that preliminary defence was disposed of by the Lord Ordinary on 20th February 1889 by being repelled, and by an interlocutor which he has now pronounced disposing of the expenses of the discussion. A reclaiming-note has been lodged on the footing that the judicial factor is entitled to reclaim against this last interlocutor, and thereby bring up the interlocutor of 20th February for review on a twenty-one days' reclaiming-note.

It appears to me that this reclaiming-note is not competent without leave of the Lord Ordinary, nor with leave after the expiry of ten days, because it is simply a reclaiming-note against the judgment of a Lord Ordinary repelling a preliminary defence.

Page: 657↓

Lord Mure—I am entirely of the same opinion. The interlocutor of the 14th of June on the face of it bears to be an interlocutor dealing with the expenses incurred in connection with a preliminary defence, and with that question only.

Lord Shand—My opinion is that this is a reclaiming-note against a judgment of the Lord Ordinary disposing not of the whole merits of the cause, but only a part of it, and that it must be reclaimed against within ten days, and even then, only with the leave of the Lord Ordinary. I think it is evident that when this objection has been disposed of, the cause between the nominal raiser and the other claimants will go on to the effect of the nominal raiser being next required to lodge a condescendence of the fund in medio, with regard to which there may be very considerable discussion, and till all this is finished there can be no concluded cause between the nominal raiser and the claimants.

I am of opinion therefore that the reclaiming-note now presented is incompetent, the leave of the Lord Ordinary not having been obtained.

Lord Adam—As I understand the matter, the reclaimer says that the interlocutor of 20th February was an interlocutor disposing of the whole merits of the case as between the nominal raiser and the claimants, except in so far as it did not dispose of the question of expenses, and that if it had disposed of these it would have been a final interlocutor, which might be reclaimed against within twenty-one days. He now says that the present interlocutor does dispose of expenses, and that therefore the whole merits of the cause are now disposed of. I think he is mistaken. The preliminary defence which has been repelled is the same as a preliminary defence in an action of reduction. There is a great deal of necessary procedure to go on between the nominal raiser and the claimants. The first thing will be an order upon the nominal raiser to lodge a condescendence of the fund. If any questions arise on that, they will all be between the nominal raiser and the claimants. I think therefore that the interlocutor of the Lord Ordinary was one disposing of a strictly preliminary defence, and could not be reclaimed against without leave.

The Court refused the reclaiming-note as incompetent.

Counsel:

Counsel for the Reclaimer— C. S. Dickson. Agents— Macandrew, Wright, & Murray, W.S.

Counsel for the Respondent— Guthrie. Agents— Cumming & Duff, S.S.C.
1889