Scottish Court of Session Decisions

Robert Sclater, and others, obtained decree for certain sums against the late David Clyne, S.S.C., and, notwithstanding Clyne's opposition, they were allowed interim execution on caution pending an appeal, which was entered by Clyne. A charge to pay the sums decerned for was then given to Clyne, and he offered a bill of suspension, which the Court refused. Clyne presented a second appeal against the judgments awarding interim execution and refusing the suspension. Under the first appeal the interlocutor of the Court of Session was reversed. The second appeal was remitted to the Court of Session to be dealt with according to justice. The judgment was applied, and the case was remitted to the Lord Ordinary, before whom the trustees of Clyne (now deceased) insisted that the reasons of suspension should be sustained; and that they were entitled to the expenses of the whole procedure which had followed on that judgment of this Court which was reversed under the first appeal. In support of this they pleaded, that, as interim execution had been awarded of an erroneous decree, and such award was necessarily obtained periculo petentis, and with the contingency of a reversal in view, for which event caution was found; and as Clyne had been justified in his resistance to interim execution, he should be found entitled to his expenses.

Sclater and others answered, that they consented to the reasons of suspension being sustained, and also that Clyne's trustees should be allowed the expense of opposing the application for interim execution, because Clyne was entitled, in the ordinary course of pleading, to resist that application when it was made. But all his subsequent procedure was beyond the limits of fair litigation. After interim execution was awarded, the bill of suspension must have been refused, unless it could have been alleged that the diligence done was a deviation from the execution as allowed by the Court; and the second appeal against the interlocutor refusing the suspension, was directly in the face of the statute allowing interim execution, which declared that no such appeal should be competent. As these proceedings were wholly unjustifiable at the time when Clyne adopted them, and as it would be highly inexpedient to encourage the evasion of interim execution when allowed the expenses should not only not be given to the trustees of Clyne, but they should be found liable in expenses.

The Lord Ordinary “having considered this case, with the various proceedings and productions, and heard parties, (1.) Recalled the interlocutor of the Second Division of the Court, 5th March, 1831, awarding interim execution, and found the petitioners, the trustees of the late David Clyne, entitled to the expenses of opposing that application. (2.) In the suspension of the charge given to Mr Clyne, for payment of the sums for which interim execution was awarded, of consent suspended the letters, but found no expenses due to the petitioners in that process. (3.) Found the petitioners entitled to no expenses under the second appeal at the said David Clyne's instance. And, (4.) Found them entitled to their expenses under the present application, in so far as they have been Successful, and decerned.” ^*

_________________ Footnote _________________

^* “Note—This is rather a peculiar cage.

“The Court decided a cause against the late David Clyne with expenses. On this he appealed. The successful party, Robert Sclater and others, applied for interim execution. This Mr Clyne resisted on various grounds, one of which was that the application was not by the whole seventy-five pursuers, but only by sixty-six of them. The Court granted interim execution in the usual terms. Mr Clynn declined to pay the sum decerned for. On this he was charged. He suspended the charge, partly on the same grounds on which he had resisted the decree for interim execution, but also on this one, that the bond had not been granted by the whole of the sixty-six persons who had petitioned for this decree, but only by nine persons acting for them, and that it was otherwise defective. Lord Moncreiff, as Ordinary, refused this bill with expenses, stating in a note that be held it to be incompetent, and the objections to the bond ‘quite untenable.’ The Court adhered to this interlocutor on advising a reclaiming note. Mr Clyne now presented a second appeal, 1. Against the interlocutor awarding execution; 2. Against the refusal of the bill of suspension by Lord Moncreiff; and, 3. Against the adherence of the Court to that refusal.

“On hearing the first appeal, the House of Lords reversed the interlocutor. This judgment has been applied, and that branch of the case is finally disposed of.

“As soon as the reversal took place, it was plain that there was no need of hearing the second appeal. Accordingly Mr Clyne himself petitioned the House of Lords to reverse the three interlocutors, and to give him his expenses without a hearing. This the House of Lords did not do; out pronounced a judgment, remitting not only the ‘cause,' but the said second ‘appeal’ to the Court of Session, to be dealt with according to justice, keeping the reversal in the principal cause in view.

“In applying this remit, the petitioners at the debate before the Lord Ordinary insisted on the following claims:—

“I. That the interlocutor awarding execution should be recalled, and with costs. This the preceding interlocutor grants.

“II. That in the suspension, the reasons of suspension should be sustained, and the costs of the suspender paid.

“The Lord Ordinary is of opinion that the petitioners are not entitled to this. The suspension must be looked at as at the period of the charge, and of the interlocutors refusing the bill. Had Mr Clyne reason for suspending then? Lord Moncreiff thought not; the Court concurred in this, and, acting under the remit from the House of Lords of the whole second appeal, the Lord Ordinary is of the same opinion. The only alleged difference of circumstance is, that since these judgments the interlocutor in the principal cause has been reversed. This would clearly entitle the petitioners to present a second bill on the ground of a supervening objection, but it cannot affect the first one. They argued that the attempt to enforce the order for execution was made, like an application for an interdict, periculo petentis. But if a petition for interdict had been fully considered, and its prayer granted by the Court, would the party applying be responsible, not only for all the consequences truly flowing from that application, but for all the costs incurred by his adversary in any collateral means which he might choose to resort to for trying the same point over again? The charge being given In due conformity with the interlocutor, Mr Clyne ought to have obeyed It in the interim, and the Court was bound to assume its own judgment to be correct till it was actually set aside. What if, besides a suspension, Mr Clyne bad tried an interdict, and a declarator, and a reduction? Would the reversal oblige his opponent to pay for all these? The Lord Ordinary would not even have suspended the charge except for the consent of the respondents, who (stated at the debate, that, in order to simplify matters, or to relieve the fears of the petitioners, they had no objection to this matter being disposed of any how. But quoad expenses, they stood upon their right. And in determining the measure of this right, it does appear to the Lord Ordinary that any obvious attempt to defeat an interlocutor awarding interim execution by a bill of suspension ought to be strongly discouraged.

“III. That the expenses of the second appeal should be paid. This claim has not been granted, and for two reasons, first, Because the Lord Ordinary agrees with the Court in the propriety of awarding interim-execution, and in supporting Lord Moncreiff's interlocutor refusing the bill of suspension, and therefore thinks the appeal groundless. Secondly, Because even though the appeal had been just there was nothing in the case to warrant laying these expenses on the party who had the judgment of the Court of Session in his favour—a thing almost never done in the Lords.

“The Lord Ordinary, moreover, has the greatest doubt whether it be competent for the petitioners to claim either the expenses of the suspension, or of the appeal, under the existing application by themselves for applying the judgment The prayer of the petition specifies how they wish it to be applied, but it asks none of these expenses, nor has it any general words to reach them.”