Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 EXPENSES.

Duncan Henderson
v.
Thomson

Date: 9 July 1776

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Henderson, an officer of excise, having brought a process of cessio against his creditors, met with considerable opposition, which, as he alleged, did not arise fairly from his creditors, but from an unlawful combination of certain smugglers, who instigated his creditors to oppose him, and had entered into a bond for that purpose, and to defray the expense of the litigation.

Having however prevailed in his cessio, and being liberated, he brought a process of damages against the alleged conspirators. The Lords demurred as to the relevancy; but, as he alleged proof scripto as to the bond of combination, before answer, they granted him a diligence for recovering it. He extracted it, and executed it against some of the defenders for production of the bond, as was done in the case of Stirling; and, though they could not be examined in causa, yet he examined them as havers. They came to town and were examined accordingly. After deponing, they claimed their expenses as witnesses, for in that character they had been examined; Lord Hailes and Lord Kennet, Ordinaries on oaths and witnesses, found them entitled to expenses, 9th July 1776.

Afterwards, before answer, the Lords allowed a proof at large to both parties, August 1776.

Personal expenses sometimes given in name of damages; see Snodgrass, &c. against Wetherspoon, tit., Damages for Defamation.