Scottish Court of Session Decisions

Subject_1 DECISIONS OF THE LORDS OF COUNSEL AND SESSION, REPORTED BY SIR JAMES FERGUSON OF KILKERRAN.

Joseph Allan
v.
James Young of Netherfield, and John Miller

Date: 23 November 1757

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This case is reported in Fac. Coll. (Mor. 10,047.) Lord Kiekerran's note of the proceedings is as follows :—

“August 2, 1757.—The President, that a penalty is but the liquidation of the expenses in case of failyie, and if any expense has been laid out of which the out-layer had no title to be reimbursed, the penalty cannot be due to that extent; and therefore as the expenses of the litigation on the charge would not have been granted as the court was much divided, neither can the penalty to that extent.

“The Lords altered, and found the penalty not due on account of the expenses.

“But does not this seem to import, that in no case can a man get the penalty to the extent of his expenses, except where that expense is such as would be due, although there were no penalty in the obligation, though surely this is more than was intended ?

“The charger Allan petitioned against this interlocutor, but the Court adhered; on this occasion Lord Kilkekran observes :

“November 23, 1757.—It was by the President Colston, and others said, that the obligation for a penalty in case of failyie, is only to take place where the failyie is wrongous, but it will not always be deemed wrongous where the defender at last succumbs ; no, it will not be thought a wrongous failyie, where the suspender had a probabilis causa litigandi. This was a doctrine in which Kilkerran, Karnes, and Prestongange differed. Notwithstanding that,

“The Lords on that reasoning adhered.

“I was against the interlocutor”