Scottish Court of Session Decisions

This case is reported ante, vol. xxix. p. 507, and 19 R. 643, and ante, vol. xxx. p. 937.

This was an action raised by the Rev. David Smith Peters against the Magistrates of Greenock to have it found and declared that the defenders were bound to furnish him with a competent and legal stipend, and to have the defenders decerned and ordained to make payment to him of a certain sum as arrears of stipend prior to Martinmas 1890, and also of the sum of £400 per annum, or such other sum as should appear to the Court as competent and legal stipend from and after the said term.

On 23rd June 1891 the Lord Ordinary ( Kyllachy) pronounced the following interlocutor—“Finds, declares, and decerns in terms of the first declaratory conclusion of the summons: Quoad ultra appoints the cause to be enrolled that parties may be heard as to the petitory conclusion, and reserves all questions of expenses: Grants leave to reclaim.”

Against this interlocutor the defenders reclaimed, and on 16th March 1892 their Lordships of the Second Division pronounced the following interlocutor—“Refuse the reclaiming-note and adhere to the interlocutor reclaimed against: Find the pursuer entitled to expenses from the date of said interlocutor: Remit to the Auditor to tax the same and to report: Quoad ultra remit the cause to the Lord Ordinary to proceed therein as accords, with power to decern for the taxed amount of the expenses now found due.”

The expenses found due to the pursuer were taxed at £68, 10s. 1d., for which sum the Lord Ordinary pronounced decree by interlocutor dated 28th May 1892.

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Against these three interlocutors the defenders appealed to the House of Lords, but on 18th May 1893 their Lordships affirmed the interlocutors appealed against, dismissed the appeal, and ordered the defenders to pay to the pursuer the costs of the appeal.

The costs of the appeal and the expenses of the reclaiming-note decerned for by the Lord Ordinary's interlocutor of 28th May 1892 were paid to the pursuer by the defenders.

Thereafter the pursuer presented a petition to the Court, stating—“The said interlocutors of 23rd June 1891, 16th March 1892, and 28th May 1892 were not final, and did not exhaust the cause, which now falls to be remitted by your Lordships to the Lord Ordinary to proceed therein, as accords,” and praying the Court “to apply the said judgment of the House of Lords; to find the respondents the Provost, Magistrates, and Councillors of Greenock liable in the expenses of this application and procedure to follow hereon; to remit to the Lord Ordinary to proceed further in the cause as may be just.”

The defenders objected to their being found liable in the expenses of the application, and submitted that the petition was unnecessary.

At advising—