THE INDEPENDENT WEST MIDDLESEX FIRE and LIFE INSURANCE COMPANY and Mandatary v WILLIAM CLEUGH (Court of Session)

The Lord Ordinary, (18th February 1841,) ‘having resumed consideration of the defender's account of expenses, with the Auditor's report thereon, and objections by the defender to the said report, repels the whole of said objections; approves of the report; and decerns, in terms thereof, against the pursuer for the sum of L.127 : 2 : 8.’

Lord Mackenzie .—In regard to expenses on the merits, it is clear that the act of Sederunt is gone. That being the case, I cannot see ground for distinction as to expenses previous to the merits. No such distinction is stated in the statute. On the contrary, it is assumed in the statute that judgments of expenses on preliminary defences may all come before the Inner-House, with one exception, which does not apply to this case. I do not see how we can hold this note to be incompetent now.

Lord Fullerton —That is my opinion, too. The words of the act of Parliament are very general, and we would require something very explicit to authorise us to refuse the right of review, which, in ordinary circumstances, is allowed. Although the subsequent act of Parliament does not expressly repeal the previous act of Sederunt, yet, considering the general terms of the clause in the act of Parliament, I agree with the observations made by Lord Mackenzie.

The Court accordingly ‘repel the objection to the competency of the reclaiming note, alter the interlocutor of the Lord Ordinary, in so far as to give effect to the second objection stated by the defender to the Auditor's report, sustain the said objection, and remit to the Auditor to amend his report: Quoad ultra adhere to the interlocutor of the Lord Ordinary, and remit to his Lordship to proceed.’

Lord Ordinary, Jeffrey. Act. Dean of Fac. (Hope,) Penney. Wotherspoon & Mack, W. S. Agents. Alt. D. M'Neill, Handyside. Andrew Dun, W. S. Agent. B. Clerk.