Scottish Court of Session Decisions

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Cite as: [1835] CA 13_470

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SCOTTISH_Shaw_Court_of_Session

Page: 470↓

Whyte

v.

Vallance No. 149.

Court of Session

2d Division

Bill-Chamber

Feb 14 1835

Lds. Balgray, Cockburn, Lord Justice-Clerk, Lord Medwyn, Lord Meadowbank, Lord Glenlee.

John Whyte, Suspender.— G. G. Bell. James Vallance, Charger.— D. F. Hope.

Subject_Process—Suspension.—

Decree of absolvitor, with expenses, in an inferior Court, having been extracted, and a charge given the pursuer for payment of the expenses, bill of suspension refused, in respect the judgment on the merits had not been advocated, notwithstanding a summons of reduction of the decree had been executed.

The suspender, Whyte, raised an action of damages before the Sheriff of Lanarkshire, against the charger, Vallance, on the allegation that the latter had sold him a quantity of seed-oats, as being “ early Blaneslay oats,” whereas they turned out to be of a late description of seed. Vallance stated in defence, that Whyte had applied to him for “early Blaneslay” seed oats; that he having no such oats, wrote to his correspondent in Edinburgh, who sent him a parcel of “Blaneslay” oats, from which Whyte was supplied; but that there was only one kind of “Blaneslay” oats, which, however, was not an “early” oat. A proof was allowed, on advising which, the Sheriff-substitute pronounced the following interlocutor:—“Having considered the memorials on the proof, and reviewed the proof and whole process, finds that the defender has established that there is only one kind of Blaneslay oats; and, therefore, that the pursuer having failed to establish the grounds on which the action is laid, that there is no necessity for entering into the merits of the case, dismisses the action, finds the defender entitled to expenses, of which allows an account to be given in, and remits to the auditor to tax and report.”

To this the Sheriff adhered, stating in a note:—“The lateness or earliness of Blaneslay oats depends greatly on the soil, and the season of sowing. The pursuer was bound to have been aware of this; and if the defender furnished the only kind of Blaneslay oats generally known or used, he was not bound to guarantee a large and early produce.”

Whyte having been charged for payment of the expenses awarded against him, presented a bill of suspension, to the competency of which it was objected, that the decree of the Sheriff on the merits, upon the soundness of which the award of expenses necessarily depended, not having been brought under review, the matter of expenses could not be separately determined, as had been held in the cases of Sheills v. Dalziel, ¹ and Scott v. King or Baillie. ² On advising the bill with answers, Lord Balgray, Ordinary, pronounced this interlocutor:—“Having considered this bill, with the answers thereto, in respect that the bill of suspension is solely applicable to, and complains of the decree referred to, only in so

_________________ Footnote _________________

¹ July 2, 1825 (ante, IV. 134).

² November 26, 1831 (ante, X. 67).

far as regards the mere expenses, and does not extend to the merits thereof, which ought to have been brought by the complainer in due and competent time before the Court by advocation; and in respect of the cases, Shiells v. Dalziel, 2d July, 1825, and Scott v. King or Baillie and Others, 26th November, 1831, decided by the Court, refuses the bill, finds expenses due, which modifies to four guineas, and decerns; reserving always to the complainer, if he should be so advised, to bring a reduction of the decree absolvitor pronounced, and to the charger his defences thereagainst, as accords of law.”

Whyte thereupon presented a second bill, and at the same time raised and executed a summons of reduction of the Sheriff's decree of absolvitor, which, he contended, was sufficient to entitle him to have his suspension passed. To this, however, it was answered that a similar plea had been overruled in the case of Scott v. King or Baillie, and Lord Cockburn, Ordinary, refused this bill also, “on the ground stated by Lord Balgray, on refusing the first bill.”

Whyte reclaimed.

Lord Justice-Clerk.—Any inconvenience to the suspender arises from his own neglect in not advocating. We are not to do away the distinction between advocation and suspension, and he will get his remedy in the reduction.

Lord Medwyn.—I would not lay down any such rule as that a party can never suspend as to expenses, because he has not advocated as to the merits. Now, what is the difference here, that he has not advocated, but has brought a redaction? Just that, though the suspension does not bring up the merits, the reduction does this, and although the first bill was properly refused, there being no reduction, now that there is a reduction on the merits and the suspension as to expenses, the whole question is before the Court as if there had been something on the merits to be suspended, and on that ground I see no reason to refuse the bill.

Lord Meadowbank.—We cannot judge of the merits at all.

Lord Glenlee.—I am for adhering.

The Court accordingly adhered.

Solicitors: John Murdoch, S. S. C.— Campbell and Macdowall, S. S. C.—Agents.

SS 13 SS 470 1835