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SCOTTISH_Court_of_Session_Shaw

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016SS0100

Templeton

v.

Templeton.
No. 16.

Court of Session

1st Division

Nov. 23 1837

Ld. Cockburn. Lord Gillies, Lord Mackenzie, Lord Corehouse, Lord president.

James Templeton, Suspender.— Counsel:
M'Neill— W. Bell. William Templeton and Others, Chargers.— Counsel:
Sol.-Gen. Rutherfurd— J. Anderson.

Subject_Process—Suspension.— Headnote:

A bill of suspension of a threatened charge on a decree was passed: a record was made up, during which a reduction of the decree was raised, and the charger verbally disclaimed all intention of charging on the decree till the issue of the reduction; the Lord Ordinary repelled the reasons of suspension without prejudice to the claims of either party under the relative process of reduction, and also without prejudice to the suspender's presenting another bill of suspension, if the charger should attempt to charge for payment of the sum in the decree:—Held that it was irregular to repel the reasons of suspension, and at the same time to find that this was without prejudice to presenting another bill of suspension if a charge should be given; and interlocutor accordingly recalled.

Facts:

A multiplepoinding was raised by William Templeton (son of the deceased John Templeton, farmer, Howlet-hole) and Others, in name of James Templeton, farmer in Over-Dalserf, and Josiah Frame. After considerable procedure, in the course of which the real raisers lodged a condescendence of the fund in medio, as amounting to £1012, 10s., and objections thereto were lodged by the nominal raiser, James Templeton, followed by a revised condescendence on the part of the real raisers, to which no answers were lodged by James Templeton, the Lord Ordinary, “in respect of the nominal raiser, James Templeton's failure to put in answers to the condescendence of the fund in medio, lodged by the claimant, William Templeton, held him as confessed on the fund therein condescended on, and decerned against the said James Templeton for the amount thereof in favour of the said William Templeton: found the said James Templeton liable to the said William Templeton in the expenses incurred by him in this process," &c. A reclaiming note to be reponed was presented along with revised answers, and the Court remitted to the Lord Ordinary to repone on payment of such expenses as seemed just. The Lord Ordinary reponed “on payment of the sum of two guineas.” The sum was not paid, and the Lord Ordinary, “in respect the sum on payment of which the said James Templeton was reponed, has not been paid, of new, held the said James Templeton confessed on the fund condescended on in the condescendence lodged by the claimant, William Templeton, and decerned against James Templeton for the amount thereof, in favour of the said William Templeton; and found the said James Templeton liable to the said William Templeton in the expenses incurred by him in this process.” The account was taxed at £66, 8s. 2d., and interim-decree was pronounced for the amount, in name of Wotherspoon and Mack, W.S., the agents of the real raisers. This decree was extracted by them, and a charge given for the expenses. James Templeton presented a bill of suspension both of the charge for expenses, and also as of a threatened charge for the sum of £1012, 10s. contained in the decree. The bill was directed against William Templeton and others, and also against Wotherspoon and Mack, W.S., the agents who held the interim-decree for expenses. The Court passed “the bill on payment of the expenses of process charged for.” James Templeton paid the expenses, and letters of suspension were expede containing a conclusion that “the said pretended interim-decree and charge, as well as the said threatened charge, and whole grounds and warrants thereof, ought and should be simpliciter suspended, without caution or consignation; nevertheless, the complainer has found sufficient caution acted in the books of our Council and Session, that he shall make payment of the sum of money actually charged for, and expenses, in case it shall be found by the said Lords of our Council and Session that he is liable for the same, after discussing these our letters.”

A record was made up, in the course of doing which, James Templeton raised a reduction of the decrees in the multiplepoinding. In the suspension he alleged that the law agent, employed by him in the multiplepoinding, had grossly neglected his instructions, and failed first to lodge the revised answers, and second, to pay the amand of two guineas, though duly supplied with funds and instructions; that the decree for payment of £1012, 10s. had been taken at a time when the process of multiplepoinding was not in a shape to admit of its being regularly pronounced; and that as the whole proceedings were under reduction, the reasons of suspension should be sustained.

The chargers answered, that as payment of the expenses (£66, 8s. 2d.), contained in the interim-decree, was made a condition of passing the bill, and as payment had actually been made, there were no termini habiles for a suspension as to them; and in regard to the decree for £1012, 10s., as to which no charge had ever been given, they stated verbally that they had no intention of giving a charge for it, but would wait the issue of the reduction. No minute to this effect was put into process.

The Lord Ordinary “repelled the Reasons of Suspension, and found the letters orderly proceeded, without prejudice to the claims of either party, under the relative Process of Reduction, and also without prejudice to the suspender's presenting another Bill of Suspension, if the charger should attempt to charge for payment of the sum of £1012, 10s., or any part of it, which, hoc statu, the charger disclaims, and decerned; and found the suspender liable in expenses.”

The suspender reclaimed.

Lord Gillies.—I am satisfied that the interlocutor ought to be altered. It first repels the reasons of suspension, and finds the letters orderly proceeded, after which it contains a reservation which appears to me to be altogether incompatible with these findings. The findings are pronounced “without prejudice to the suspender's presenting another bill of suspension, if the charger should attempt to charge for payment of the sum of £1012, 10s., or any part of it, which, hoc statu, the charger disclaims," &c. It is true that, in respect to this sum, no charge has actually been given, and the suspension is of a threatened charge only. But the charger holds a decree for the sum; and in such circumstances, it is as competent, by the law of Scotland, to suspend a threatened as an actual charge. A process of suspension of the threatened charge is accordingly in dependence, in which a record has been made up, and I cannot affirm an interlocutor in that process which, at one and the same time, repels the reasons of suspension, and yet declares that to be without prejudice to a new bill of suspension being presented if a charge shall be actually given. I do not think there is any precedent for dismissing a suspension of a threatened charge, in terms which imply that there are grounds for presenting a bill of suspension the moment that any charge shall be actually given. These observations regard the suspension so far as relates to the threatened charge. As to the actual charge for expenses, it rather appears to me that the interlocutor of this Court, passing the Bill of Suspension “on payment of the expenses of process charged for," was inaccurately expressed. That was substantially a refusal of the bill, so far as regarded the expenses charged for, and passing it quoad ultra, and the interlocutor would have been more correct if so expressed. But I see that a reduction of the proceedings in the multiplepoinding has been brought, and it rather appears to me that the most expedient course would be to recal the interlocutor of the Lord Ordinary, and sist proceedings in the suspension, until time is given to bring the reduction to a conclusion. And perhaps the best way of doing this would be to recal the interlocutor, and remit the process in general terms to the Lord Ordinary, that he may have both the reduction and the suspension before him.

Lord Mackenzie.—I concur in thinking that the interlocutor should be recalled, and the cause remitted as now proposed. I think the interlocutor under which the Court passed the bill was substantially a refusal of it, except as to the threatened charge, and should have been so expressed; for it was only on condition of paying the expenses charged for, that the bill was passed. And after that was done, I think the suspender had no remedy left, so far as these expenses were concerned, except what he might obtain in his process of reduction. As it appears to me that the interlocutor of the Lord Ordinary is inaccurately expressed, I think the best course is to recal it, and to remit to his Lordship to sist the process till the issue of the reduction, or perhaps to remit in more general terms.

Lord Corehouse.—I am quite of the same opinion. It may sometimes happen that a bill of suspension is refused, without prejudice to the suspender insisting in any process of reduction which he may have raised; for a reduction is not a suspensive, but a rescissory process. But that is not the shape of the interlocutor before us. The Lord Ordinary not merely reserves the effect of the reduction, but also of the suspension of any charge which may be given. Now it is as competent to suspend a threatened charge as an actual charge; and it is quite contrary to form or regularity, that an interlocutor should refuse a suspension of a threatened charge, reserving to the suspender to present a bill of suspension of any actual charge which may be given to him. As to the suspension of the charge for expenses, the decree and charge for expenses have been satisfied and implemented by payment, and all question as to them, under the suspension, is out of Court. It is possible, however, that there may be grounds in the case for dismissing the reasons of suspension absolutely, without, any reservation, except as to the effect of the reduction. I do not see such grounds; but lest there be such, I think the remit to the Lord Ordinary should be left so general, that if his Lordship sees grounds for dismissing the reasons of suspension de plano, in these terms, he may be at liberty to do so; but otherwise, his Lordship should sist process in the suspension till the issue of the reduction.

The Lord president concurred.

The Court recalled the interlocutor of the Lord Ordinary, and remitted to his Lordship in general terms to proceed as should be just, reserving all questions of expenses.

Solicitors: J. Logan, W. S.— Wotherspoon and Mack, W. S.—Agents.

SS 16 SS 100 1837