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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Clark (Barr's Curator Bonis) v. Barr's Trustees [1903] ScotLR 40_625 (26 May 1903)
URL: http://www.bailii.org/scot/cases/ScotCS/1903/40SLR0625.html
Cite as: [1903] ScotLR 40_625, [1903] SLR 40_625
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SCOTTISH_SLR_Court_of_Session
Page: 625↓
Court of Session Inner House First Division.
v.
Facts:
In a petition by a curator bonis for discharge, the Lord Ordinary, on 21st August, pronounced an interlocutor determining certain questions of accounting between the curator and the curatory estate raised by a report of the Accountant of Court, and also a question, in dispute between the curator and the representatives of the deceased ward, as to the curator's right of retention in certain shares. This interlocutor was not reclaimed against. On 26th November the Lord Ordinary pronounced a further interlocutor finding that on payment by the curator of a balance due to the ward's representatives he was entitled to discharge. The petitioner presented a reclaiming-note against the latter interlocutor, and stated that he did so for the purpose of submitting the former interlocutor to review.
Held (1) (following Macqueen v. Tod, May 18, 1899, 1 F. 859, 36 S.L.R. 649) that the right to reclaim against interlocutors pronounced under the petition was wholly regulated by section 6 of the Distribution of Business Act 1857, and (2) that the interlocutor of 21st August was a judgment pronounced by the Lord Ordinary upon the merits in the sense of section 6, and accordingly (3) that the reclaiming-note against the interlocutor of 26th December was an incompetent method by which to bring under review the interlocutor of 21st August.
The Distribution of Business Act 1857 (20 and 21 Vict. cap. 56), sec. 6, enacts:—“It shall not be competent to bring under review of the Court any interlocutor pronounced by the Lord Ordinary upon any such petition, application, or report as aforesaid” [including a petition for the discharge of a judicial factor] “with a view to investigation and inquiry merely, and which does not finally dispose thereof on the merits; but any judgment pronounced by the Lord Ordinary on the merits, unless where the same shall have been pronounced in terms of instructions by the Court on report as hereinbefore mentioned, may be reclaimed against by any party having lawful interest to reclaim to the Court, provided that a reclaiming-note shall be boxed within eight days, after which the judgment of the Lord Ordinary, if not so reclaimed against, shall be final.”
On 14th May 1901 a petition was presented
Page: 626↓
by Malcolm Turner Clark, steamship owner and commission agent, 5 Oswald Street, Glasgow, curator bonis to John Barr, for exoneration and discharge in respect of his actings and intromissions as curator bonis. The ward John Barr had died on 9th February 1901 and left a will appointing trustees of his estate. The petition was remitted in the usual course to the Accountant of Court to examine and audit the accounts of the curator bonis.
The Accountant reported that the curator's accounts were correctly stated and vouched. But he further specially reported (1) that the curator had been guilty of failure in duty, through which the estate had suffered loss, and that he was liable to the penalties imposed by section 6 of the Pupils Protection Act 1849, in respect of which his commission should be reduced by £300; (2) that certain law accounts incurred by the curator in relation to a previous report by the Accountant were not proper charges against the curatory, that these accounts should be disallowed, and that a relative bank overdraft, which was debited, was unnecessary and the interest thereon should be disallowed.
Objections to this report were lodged by the petitioner.
Appearance was also made for the testamentary trustees of the deceased ward, who supported the contentions of the Accountant, and also maintained that the petitioner was bound to transfer to them as part of the curatory estate 500 shares which stood in his name, and that he had no right of retention in these shares.
On 21st August 1902 the Lord Ordinary on the Bills ( Pearson) pronounced an interlocutor, in which he found (1) that the law accounts in question incurred by the curator bonis were not proper charges against the curatory, and that the relative bank overdraft was unnecessary, and that the amount of bank interest thereon charged against the curatory should be replaced; (2) that in the circumstances the curator bonis was not liable in any of the penalties imposed by section 6 of the Pupils Protection Act 1849; (3) that the curator bonis was bound to transfer to the representatives of the deceased ward the 500 shares presently standing in his name as part of the curatory estate, and that he had no right of retention or indemnity therein, and was bound to endorse and deliver to the said representatives the deposit-receipts for the dividends accrued thereon, so far as in his custody or under his control; (4) found no expenses due as between any of the parties from 8th March 1902 to this date, reserving as to expenses quoad ultra; and of new remitted to the Accountant of Court to give effect to the foregoing findings, and to adjust the balance due to or by the curator bonis, and to report.
This interlocutor was not reclaimed against.
The Accountant of Court having lodged an additional report, the Lord Ordinary on November 26, 1902, pronounced an interlocutor in which he found that the balance due by the curator bonis to the ward's estate was £80, 11s. 1d.; that on payment by the curator of this sum to the ward's representatives, less the taxed amount of the expenses of the petition, he would be entitled to his discharge in terms of the prayer of the petition.
The petitioner reclaimed.
It was stated by the petitioner and reclaimer that the reclaiming-note was presented for the purpose of submitting to review the Lord Ordinary's interlocutor of August 21, 1902, and that he had no objection to, or interest to oppose, the interlocutor of November 26, 1902, in itself.
Argued for the respondents—The reclaiming-note against the Lord Ordinary's interlocutor of November 26, 1902, was not a competent mode of bringing under review the Lord Ordinary's interlocutor of August 21, 1902, which was the only purpose the reclaimer had in view. The interlocutor of August 21, 1902, could only be competently reviewed by being reclaimed against within eight days. The right to reclaim in summary petitions of this kind was regulated wholly by the Distribution of Business Act 1857, and the provisions of the Court of Session Act 1868 were inapplicable— M'Nab v. M'Nab, December 21, 1871, 10 Macph. 248, 9 S.L.R. 171; Macqueen v. Tod, May 18, 1899, 1 F. 859, per Lord M'Laren, 36 S.L.R. 649; Wallace v. Whitelaw, February 23, 1900, 2 F. 675, 37 S.L.R. 483. The interlocutor of 21st August 1902 was a decision on the merits. It was none the less so although it might be that it did not exhaust the merits. It determined the merits on certain questions of right which were in dispute between the parties, and therefore fell under the category of interlocutors which, under section 6 of the Act 1857, must be reclaimed against within eight days and if not so reclaimed against were final.
Argued for the respondents—In view of the decision in Macqueen v. Tod ( supra) it was admitted that the question whether the interlocutor of 21st August 1902 could be reviewed under this reclaiming—note was regulated by the Distribution of Business Act 1857, section 6. The interlocutor of 21st August 1902 was not an interlocutor which, in the language of section 6, “finally” disposed of the merits. It certainly decided certain questions of accounting raised by the report of the Accountant of Court as well as the minor question as to the petitioner's right of retention in certain shares. But there remained many questions still undecided, and these questions could only be properly raised and decided in a reclaiming-note against the interlocutor of 26th November, which did finally dispose of the petition on the merits. The proper view was that the interlocutor of August 21 was a mere step in the supervision and regulation by the Court of the administration of the petitioner, which came competently under review in a reclaiming-note against the interlocutor of 26th November finally disposing of the petition on the merits.
Page: 627↓
to have been repealed. But that question was fully considered in the case of Macqueen v. Tod ( 1 F. 859), and it is now conceded—and I think the concession could not have been withheld—that the right to reclaim against the interlocutor in question must be regulated by the Act of 1857, and that Act alone. The question therefore is, whether the interlocutor of 21st August 1902 is a decision on the merits. Section 6 of the Act of 1857 deals with two different classes of interlocutors—(1) interlocutors with a view to investigation, and (2) interlocutors on the merits. That is an exhaustive description of the kinds of interlocutors which may be pronounced in the course of procedure under such petitions. It is quite clear that the interlocutor in question is not one of the first class, and prima facie it would seem to follow that it must be one of the second class. But apart from that consideration it appears to me that an interlocutor which decides a point in dispute between two contending parties according to their legal rights is an interlocutor on the merits. Mr Graham Stewart says there may be many questions which may still be raised and are still undecided, but that is just the difference between petitions of this kind and ordinary actions which made it necessary to make special regulations for procedure in the former case by the provisions of the Distribution of Business Act. The petition is merely a process for instituting a judicial administration, and in the course of such administration there may or may not be disputed questions of right, each of which must be determined on its own merits. It cannot be supposed that no interlocutor disposing of such questions is to be brought into the Inner House until the whole process in the petition, which means the whole administration in the hands of the Court, has come to an end; and therefore the question of competency cannot depend upon whether the process is exhausted, but simply on whether the interlocutor disposes on the merits of the question with which it purports to deal. I think therefore that the question whether the interlocutors reclaimed against dispose of the whole cause does not arise, and I do not doubt that an interlocutor deciding that a curator must account for a certain sum is an interlocutor on the merits. I therefore agree that a reclaiming-note against the interlocutor of 26th November 1902 is an incompetent method by which to bring under review the interlocutor of 21st August 1902, and it would be futile to review the former interlocutor if we cannot recal the interlocutor on which it is founded.
On the question of expenses it was stated that the Accountant of Court had intimated to the respondents, the wards' representatives, that they were responsible for the conduct of the case against the reclaiming-note in the Inner House.
Page: 628↓
The Court pronounced the following interlocutor:—
“The Lords having considered the reclaiming-note against the interlocutor of Lord Pearson dated 26th November 1902, and heard counsel for the parties—In respect it was stated by the reclaimer that the reclaiming-note was presented for the purpose of submitting to review the interlocutor of 21st August 1902, Find that the latter interlocutor could only be reclaimed against in accordance with the provisions of section 6 of the Distribution of Business (Scotland) Act 1857, and not having been so reclaimed against is final; and it having been stated by the reclaimer that they have no objection to the said interlocutor of 26th November 1902, Adhere to the said interlocutor, and decern: Find the respondents John Barr's trustees entitled to the expenses of the reclaiming-note, and remit the account thereof to the Auditor to tax and to report, and find no expenses due to or by the Accountant of Court.”
Counsel for the Petitioner and Reclaimer— Craigie— Graham Stewart. Agents— Clark & Macdonald, S.S.C.
Counsel for the Respondents Barr's Trustees— Mackenzie, K.C.— Galbraith Miller. Agents— Macrae, Flett, & Rennie, W.S.
Counsel for the Accountant of Court— Blackburn. Agent— Thomas Carmichael, S.S.C.