Scottish Court of Session Decisions

Mr Ivory, for the Lord Advocate, asked the Court to pronounce a decree in special form. By section 2 of the Crown Suits Act (18 and 19 Vic., c. 90) it is enacted that where judgment is given against the Crown “the defendant or defendants shall be entitled to recover costs in like manner, and subject to the same rules and provisions, as though such proceeding had been had between subject and subject; and it shall be lawful for the Commissioners of Her Majesty's Treasury, and they are hereby required, to pay such costs out of any monies which may be hereafter voted by Parliament for that purpose.” If decree was now pronounced against the Lord Advocate, he might be charged, and the rents payable to the Crown might be attached, and this had been done in a recent case. In England, in similar circumstances, the Court of Chancery had ordered that the costs should be paid in the manner directed by the Crown Suits Act, “with liberty for the defendants, or any of them, to apply to this Court as they may be advised with respect to the said costs.” ( Attorney-General v. Hanmer, 12th May 1859, 4 De Gex and Jones, 205.) Mr Ivory asked a similar order in this case.

The Court refused to pronounce any other than an ordinary decree against the Lord Advocate, as acting for the Commissioners of Woods and Forests. Of course such a decree did not make his Lordship personally liable. But if the Crown refused to pay expenses decerned for, their creditor was entitled to recover them in the ordinary way. The Act of Parliament placed the Crown in regard to this matter in the same position as a subject.