Fleeming v Howden
| Jurisdiction | Scotland |
| Judgment Date | 06 November 1868 |
| Date | 06 November 1868 |
| Docket Number | No. 27 |
| Court | Court of Session (Inner House - Second Division) |
I.
Appeal—Interim Execution—Interest—Expenses.—
VIDEante, vol. v. pp. 658 and 676—House of Lords, vol. vi. p. 113.
In a petition by the respondent (Mr Howden), craving the Court to transfer and vest in him, as trustee on the sequestrated estate of the deceased John, fourteenth Lord Elphinstone, certain lands in which Lord Elphinstone died infeft, and to which Mr Fleeming's mother, Lady Hawarden, had made up a title, the Court repelled the pleas of Mr Fleeming, who had succeeded his mother, and granted the prayer of the petition.
Mr Fleeming having appealed to the House of Lords, Mr Howden presented a petition to the Court to regulate interim possession, and for interim execution. This petition was opposed by Mr Fleeming, but was granted by the Court so far as regarded Mr Howden's expenses. After taxation, these were paid by Mr Fleeming, without requiring extract of the decree, upon a simple receipt.
The House of Lords reversed the interlocutors of the Court of Session, and declared that the petition ought to be dismissed, with expenses. The judgment farther bore—‘And it is further ordered that any expenses in the Court below, which may have been paid by the appellants to the respondent under any of the interlocutors hereby reversed, be repaid by the said respondent to the appellants: And it is also further ordered that the said cause be, and the same is hereby remitted back to the Court of Session in Scotland, to do therein as shall be just, and consistent with this declaration and judgment.’
Mr Fleeming then presented this petition for application of the judgment. He prayed the Court to find Mr Howden liable in the whole expenses incurred by him in the proceedings following on the petition, including the expenses of opposing the said petition for interim execution, and also in the expenses of the present application, and procedure therein; …. and to decern and ordain the said James Howden to repay to the petitioners the expenses paid by the petitioners, with interest thereon at the rate of £5 per centum per annum from the date of payment.1
Mr Howden objected to being made liable in the expenses of the opposition to the petition for interim execution, on the ground that the judgment granting interim execution was a final and standing judgment, regarding the expenses of which the House of Lords had given no direction, as they might have done under the Act 48 Geo. III...
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