Scottish Court of Session Decisions

Mrs Christina Turner and another raised an action of accounting against James Robertson and others, the testamentary trustees of the late Mrs Fraser, Glasgow. The defenders produced an account, and the pursuers objected to their taking credit therein for a sum representing the said Mr Robertson's charges as law-agent of the trust. The defenders averred that Mr Robertson's account had been examined and taxed by Mr Hannay, the auditor appointed by the Faculty of Procurators in Glasgow, and that it was an implied condition of Mr Robertson's employment that his accounts should be taxed by that gentleman.

The pursuers pleaded—“(2) The trustees, or the pursuer as an individual, not having agreed to refer the accounts in question to Mr Hannay for taxation, or approved of his taxation, it is not binding on them or her.”

On 4th December 1896 the Lord Ordinary ( Kyllachy) pronounced the following interlocutor:—“The Lord Ordinary having heard counsel in the procedure roll on the question between the parties as to the right of the pursuer to have the business accounts of the defender James Robertson, one of

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the trustees, and law-agent and factor of the trust, taxed, Finds that the said accounts have been already taxed by the auditor of the Faculty of Procurators, Glasgow, but that it is admitted that said taxation took place ex parte, and was obtained by the defender the said James Robertson at his own hands, and that without special authority from or intimation to the other trustees or beneficiaries: Finds that in these circumstances the pursuer is entitled to have the said business accounts taxed of new: Therefore remits the same to Mr James M'Intosh, S.S.C., Auditor of the Court of Session, to tax, and to report quam primum; reserving all questions of expenses.”

The Lord Ordinary refused the defenders motion for leave to reclaim.

The Court of Session Act 1868 (31 and 32 Vict. cap. 100), sec. 27, contains certain enactments relating to procedure after the closing of the record, and in particular to the allowing or refusing of probation.

Section 28 enacts that any interlocutor pronounced by the Lord Ordinary, as provided for in the preceding section, shall be final, unless within six days from its date the parties, or either of them, shall present a reclaiming-note against it to one of the Divisions of the Court.

Section 54—“Except in so far as otherwise provided by the 28th section hereof, until the whole cause has been decided in the Outer House, it shall not be competent to present a reclaiming-note against any interlocutor of the Lord Ordinary without his leave first had and obtained.”

The Act of Sederunt 10th March 1870, section 2, enacts—“That the provisions of the 28th section of the said statute [the Act of 1868] shall apply to all the interlocutors of the Lord Ordinary hereinbefore referred to, so far as these import an appointment of proof, or a refusal or postponement of the same.”

The defenders reclaimed.

On the case appearing in the Single Bills the pursuers objected that the reclaiming-note was incompetent.

Argued for the pursuers—The reclaiming-note was clearly excluded by section 54 of the Act of 1868. The interlocutor of the Lord Ordinary here was not one appointing, refusing, or postponing a proof. Hence the case was easily distinguishable from that of Quin v. Gardner & Sons, June 22, 1888, 15 R. 776, relied on by the defenders, where the remit to a man of skill was intended to take the place of a proof.

Argued for the defenders and reclaimers—The reclaiming-note was competent. Quin's case afforded an exact analogy to the present one.

At advising—