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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Innes v. M'Donald [1899] ScotLR 284_1 (10 January 1899) URL: http://www.bailii.org/scot/cases/ScotCS/1899/36SLR0284_1.html Cite as: [1899] SLR 284_1, [1899] ScotLR 284_1 |
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Page: 284↓
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A reclaiming note against an interlocutor approving of the Auditor's report, and decerning for the taxed amount of expenses is competent where the Auditor's report raises a specific question of taxation, and the question is discussed before the Lord Ordinary, although no written objections to the report are lodged.
An action of count, reckoning, and payment was raised by Mrs Innes, Richmond Place, Edinburgh, against Alexander M'Donald, sheriff officer, Edinburgh. The Lord Ordinary (
Kyllachy ) on 28th October 1898 decerned against the defender for payment of a certain sum, and found the pursuer entitled to expenses.The Auditor in his report, whereby he taxed the pursuer's account at the sum of £95, stated that the defender had contended that the whole of the pursuer's expenses should be disallowed on a legal ground with which he did not feel himself entitled to deal.
No written objections were lodged to this report, but the question stated was discussed before the Lord Ordinary, who on 21th December pronounced an interlocutor approving of the Auditor's report, and decerning against the defender for the taxed amount.
The defender reclaimed against this interlocutor.
The pursuer objected to the competency of the reclaiming note.
Argued for respondent—The Lord Ordinary's decision upon the merits was a final interlocutor, and it was not competent to reclaim against his last interlocutor, which dealt only with expenses, no written objections having been stated to the Auditor's report. Stirling-Maxwells Trs. v. Kirkintilloch Police Commissioners, Oct. 10th 1883, 11 R. 1.
Argued for reclaimer—This was not simply a formal interlocutor approving of the Auditor's report. A specific question had been raised by the Auditor, who said he was not competent to deal with it. It had then been discussed before the Lord Ordinary who had decided the point, and the reclaiming note was against this decision. It was of no consequence as regards its competency that there had been no written objections lodged.
But it appeared on the face of the Auditor's report that a specific question of taxation was raised, and the question was discussed before the Lord Ordinary, and decided by him. It is true that no written objections were lodged, and the parties discussed the question—which I have said appeared on the face of the Auditor's report—without a written record. I think that in these circumstances this case falls within the reservation expressed in the opinion of the Lord President in the case of Stirling-Maxicell, and that we may regard the interlocutor as disposing of a litigated question upon the matter of expenses, for the mere absence of written objections does not seem to differentiate the case from that figured by the Lord President.
The Court repelled the objection.
Counsel for the Reclaimer— W.Campbell. Agents— Hossack & Hamilton, W.S.
Counsel for the Respondent— Forsyth. Agent— Wm. Spink, S.S.C.
