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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Whitwell v. Walker [1916] ScotLR 556 (07 June 1916) URL: http://www.bailii.org/scot/cases/ScotCS/1916/53SLR0556.html Cite as: [1916] SLR 556, [1916] ScotLR 556 |
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Page: 556↓
(Single Bills.)
(See 51 S.L.R. 438, and 1914 S.C. 560, and ante p. 129.)
In a petition under the Conveyancing (Scotland) Act 1874, section 39, to have certain testamentary writings declared to be duly attested, the respondents appealed to the House of Lords against the decision of the First Division. The House of Lords reversed and sent the case back to the First Division “to do therein as shall be just and consistent with this judgment.” Held in a petition to apply the judgment of the House of Lords, that the petition to apply was
Page: 557↓
necessary, and expenses awarded to the petitioners. Reid's Trustees v. Dawson, 1915 S.C. 844, 52 S.L.R. 680 distinguished.
Henry E. L. Whitwell and Edward L. Whitwell, his father, as his guardian, petitioners, having presented a petition craving the Court ( a) to apply a judgment of the House of Lords pronounced on 15th December 1915, ( b) to refuse the prayer of a petition presented by Harry Walker and others on 17th September 1913 under the Conveyancing (Scotland) Act 1874 (37 and 38 Vict. cap. 94), sec. 39 to have it declared that certain testamentary writings of Mrs Isabella Thomson or Walker had been duly attested, and ( c) to find the petitioners entitled to the expenses of the petition out of the trust estate of the said Mrs Isabella Thomson or Walker, moved for decree in terms of the prayer of the petition in the Single Bills, which motion, in so far as it dealt with expenses, was opposed by Harry Walker and others, respondents.
On 15th December 1915 the House of Lords reversed the interlocutor of a Court of Seven Judges pronounced on 10th March 1914 on the petition under the Conveyancing Act 1874, and remitted the case back to the Court of Session “to do therein as shall be just and consistent with this judgment”
( see ante, p. 129).
Argued for the respondents—The petition was unnecessary. The judgment of the House of Lords was purely declaratory and diligence could not be done upon it, consequently the petitioners were not entitled to their expenses— Reid's Trustees v. Dawson, 1915 S.C. 844, 52 S.L.R. 680.
Argued for the petitioners— Reid's case ( cit.) was to be distinguished, for it was a special case in which the House of Lords directed the Court of Session to answer the questions in a certain way, and to get an interlocutor from the Court of Session so answering the questions was an utter formality and quite unnecessary. Here the interlocutor of the Court of Session was reversed and the case remitted back, consequently there was no operative decision in the original petition extant, and therefore the present petition was necessary, and the expenses ought to be awarded out of the trust estate as the other expenses in the case were.
Whether the case of Reid's Trustees v. Dawson, 1915 S.C. 844, 52 S.L.R. 680, in the Second Division of the Court was well decided or not I do not say. On the question there raised I desire expressly to reserve my opinion. It is sufficient for our judgment to-day to say that this case differs from the case of Reid's Trustees ( cit.), where, as I understand, the Second Division held that the petition was unnecessary. In my opinion it is necessary in the present case, and therefore expenses ought to be given as craved in the prayer of the petition.
The Court granted decree in terms of the prayer of the petition, with expenses.
Counsel for the Petitioners— D. Jamieson. Agents— Sharpe & Young, W.S.
Counsel for the Respondents— Chree, K.C.— T. Graham Robertson. Agents— Elder & Aikman, W.S.
