Scottish Court of Session Decisions

debt, and diligence against the Countess, were cancelled; to recal the inhibitions used, &c.; and to grant warrant to the keeper of the records to purge the record of these inhibitions, &c. When this summons was called, appearance was entered, and the process was borrowed up. The defences were due on 29th May, 1834, but none were lodged. Two days afterwards, Ewing's agent wrote to Clason, that defences would be lodged unless certain expenses of diligences, &c. were paid. The terms thus offered were declined; and, on 5th June, Ewing's agent again intimated, that defences should be lodged unless the expenses were paid; which was again refused. When the summons was called back from Ewing's agent for enrolment, he wrote that he had sent a draft of defences to Ewing for revisal, and had just got it returned; and that the defences would be printed, and lodged before the calling. This was not done, and decree passed “in absence, conform to the conclusions of the libel, with expenses.” Ewing's agent then borrowed up the proceedings, but no reclaiming note was lodged. A caption having been intimated for recovering the process, Ewing's agent wrote to Clason, “It will be quite unnecessary for you to extract the decree, or to incur one farthing more expense about the matter, as Mr Ewing, I have no doubt, will instantly sign the renunciation on his return from London, which is expected in about a fortnight or less. Before leaving town myself, on the 16th August, I arranged with him not to reclaim, and he promised to sign the renunciation on my sending it to him, but which I omitted to do, and by the time I returned from the Continent I found him in London, where he intended to remain about ten days.”

After the lapse of a fortnight, this letter from Ewing, dated at Bristol, was delivered to Clason:—“Mr Wotherspoon (Ewing's agent) writes me that you appear exceedingly anxious to extract the decree against me regarding the discharge to Lady Strathmore. I certainly meant to have signed it before leaving Edinburgh, but being hurried away to the Horse-Guards on the spur of the moment, on an urgent affair of my son's, Lieutenant Ewing, it was in that way omitted. You may make yourself easy, however, and rely on the discharge being executed on my return.”

On the 29th of October, after Ewing was said to have been several days returned to Edinburgh, Clason extracted the decree. Upon the decree, a charge for the expenses of the action and the extract, was given to Ewing, who presented a bill of suspension on caution or consignation, chiefly founding on the plea that the decree had passed in absence. He also produced a summons of reduction of the decree on the merits, as well as the expenses, and stated that this would be executed without delay.

The chargers answered, that, in the circumstances, Ewing was barred from suspending the charge for expenses. If he had consented to the decree being passed against him, he could not thus suspend; but consent might be given rebus ipsis et factis, as well as in express terms; and the whole conduct of the suspender was such as to imply his cognizance of the decree, and his assent to it, so that his present proceedings were adopted in mala fide. ¹

The Lord Ordinary “refused the bill, and found the suspender liable in expenses.” ^*

Ewing reclaimed.