Scottish Court of Session Decisions

In an action of reduction and process of suspension, at the instance of the pursuer, Dutch, against one Webster, and Messrs Greig and Morton, W.S., his agents, the latter lodged the following minute, which explains the circumstances of the present question:

“Milne, for the defenders, stated, that, in an advocation at the instance of the said Alexander Webster, defender, against the pursuer in the present action, decreet was, of these dates (4th and 27th February, 1834), obtained against the pursuer, and with expenses, which expenses were decerned for, in the name of the said Messrs Greig and Morton, as the said Alexander Webster's agents in the advocation. That upon this decreet, diligence having been raised for payment of the expenses so decerned for, the pursuer of the present action brought the present process of redaction, for having the said decreet and charge set aside, as also a process of suspension, having a like object in view. That, in both of these processes, the said Messrs Greig and Morton were called as defenders, in so far as they might have any interest in the decerniture of expenses in their favour. That the said decreet for expenses, in the name of Messrs Greig and Morton, as the agents in the process of advocation, had been obtained merely to facilitate their obtaining payment of their account of professional charges, and they had no farther interest in the said process. That the said Alexander Webster, at whose instance the advocation had been brought, and who was primarily liable to the said Messrs Greig and Morton for payment of their account, having recently paid the same, they had no longer any interest in the said finding of expenses in their favour, or in the said process otherwise. That, in these circumstances, it will be unnecessary to continue the present action against Messrs Greig and Morton, as defenders, more especially as the said Alexander Webster, at whose instance the said advocation was brought, and decreet in it obtained, was already a defender in the present action of reduction; and he was willing to sist himself in their place, and to defend the legality of the said decreet in all respects, including the deeerniture against the said William Dutch for expenses.”

“The Lord Ordinary was humbly moved, therefore, to allow the names of James Greig, W.S., and Charles Morton, W.S., to be withdrawn from the present action as defenders.”

The motion, winch was embodied in the foregoing minute, was opposed by Dutch, who maintained that, as Messrs Greig and Morton had obtained decree for expenses in the advocation in their own name, they had in consequence properly been made parties to the reduction and suspension; that it was now incompetent for them to withdraw from these processes; and that, as they had taken advantage of a legal privilege, they should bear the onus, which the use of this privilege carried with it.

The Lord Ordinary found it incompetent, at this state of the cause, for the defenders, Messrs Greig and Morton, to withdraw from the process of reduction, and pronounced a similar interlocutor in the process of suspension.

Messrs Greig and Morton reclaimed.