Scottish Court of Session Decisions

In the case of the Lord Advocate v. The Duke of Hamilton (reported ante p. 213), their Lordships of the First Division, on 1st December 1891, pronounced the following interlocutor—“The Lords having considered the reclaiming-note for the defender the Duke of Hamilton, against the interlocutor of Lord Wellwood, dated 11th June 1891, and heard counsel for the parties, Adhere to the said interlocutor: Refuse the reclaiming-note: Find the respondent entitled to additional expenses since the date of the interlocutor reclaimed against: Remit the account thereof to the Auditor to tax and to report to the Lord Ordinary, and remit to his Lordship to proceed, with power to decern for the taxed amount of said expenses.”

The defender presented a petition to the First Division under the Act 48 Geo. III. cap. 151, sec. 15, praying for authority to appeal the interlocutor above quoted, and that of the Lord Ordinary of date 11th June 1891, to the House of Lords, the conclusions of the action not having been exhausted by these interlocutors.

Argued for him—This was a case in which an appeal at the present stage ought to be allowed. If the decision of the Court was affirmed a long and expensive inquiry, involving an accounting extending over a considerable period of time would have to be entered upon, while if the decision was varied or reversed a different period would be embraced in the accounting, or an accounting might be avoided altogether. The questions decided by the Court were large and important, and might be fairly viewed as the main principles of the case, while those which remained, though of importance to the parties, were really questions of detail, and were entirely separable from those decided by the Court. The question whether an appeal ought to be allowed at the present stage being a matter for the discretion of the Court, the circumstances of the present case were particularly favourable.

Argued for the respondent—Inquiry before the Lord Ordinary would in any event be necessary in order to ascertain the value of the articles liable in duty, and to determine the amount for which decree would be given in respect of legacy-duty on the present Duke's succession. Liability for this was not disputed, but the amount fell to be ascertained. Even if the present appeal was successful there were questions in regard to that legacy-duty which might form the snbject of a second appeal, the possibility of which always weighed with the Court in considering an application like the present. It was argued also that certain of the articles were heritable in their nature, and that legacy-duty could not be claimed in respect of them, and it was also a matter of dispute whether the value of the articles was to be taken at the time of their sale, and according to the price which they realised, or as at the death of the defender's father Duke Archibald, when they were valued for inventory purposes by the trustees. These were questions which would affect the money value of the decree to be pronounced, and they should be determined before any appeal was allowed in order to obviate the possibility of a second appeal— Stewart v. Kennedy, February 26, 1889, 16 R. 521.

At advising—