Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1867/04SLR0103.html
Cite as: [1867] ScotLR 4_103, [1867] SLR 4_103

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Saturday, June 15 1867.

Lord President Lord Curriehill Lord Deas Lord Ardmillan

4 SLR 103

M'Allister

v.

Duthie.

Subject_1Retention
Subject_2Interim Decree
Subject_3Charge
Subject_4Suspension.
Facts:

Suspension of charge on interim decree in an action for payment of money, on the ground that the complainer had a right of retention in respect of having subsequently in the action obtained a judgment against the charger for a sum of expenses, which judgment was under review, refused.

Headnote:

Duthie sued M‘Allister for £96, the balance remaining due of a larger debt. M‘Allister admitted a balance of £52. The Lord Ordinary ( Mure) decerned against M‘Allister ad interim for the admitted balance, and this judgment became final. The Lord Ordinary then, after a proof, found M‘Allister liable to Duthie in a farther sum, but gave him expenses, subject to modification. Duthie reclaimed. Duthie then charged M‘Allister on the decree for £52. M‘Allister suspended, and pleaded a right of retention over the sum charged for to the extent of the expenses to which he was found entitled by decree of the Lord Ordinary. He offered to consign the amount.

The Lord Ordinary ( Mure) refused the note of suspension, and added this note to his interlocutor:—“The Lord Ordinary is not aware of any principle or authority applicable to the law of retention which can entitle a debtor to suspension of a final decree for payment of a debt, in respect of a claim arising out of a mere finding for expenses of process which has been reclaimed against, and which expenses, even if ascertained, would be subject in the first instance to the hypothec of the complainer's agent, and liable to be carried off by him to meet his account incurred on behalf of the complainer.”

M'Allister reclaimed.

Scott for him.

Fraser and Skelton, for respondent, were not called on.

The Court adhered.

Judgment:

The Lord President said—I cannot imagine any doubt in this case. When the Court award an interim decree in an action for payment of money, the footing on which it goes out is, that the sum decerned for ought to have been paid, leaving the disputed balance to be the subject of after deliberation. There may be cases in which very nice questions may arise as to whether interim decree, even in the case of an admitted balance, should be given. But whenever interim decree is given, there is an end of all such considerations. It is then a settled matter that the defender is bound instantly to pay the sum decerned for. All that is very elementary and hardly worth stating, but for the strenuous contention of the complainer. But he says that the pursuer having failed to enforce the interim decree until a further interlocutor in this cause was pronounced, he has lost his right to enforce it; and the ground on which he puts that is, that he has now got an interlocutor, in which he is found entitled to expenses, subject to modification. That is under review, and he says he may come to get a decree for the sum against the respondent. That gives him, he says, a right to retain the sum decerned for long before, and which it was his duty to pay immediately on the decree. All I can say is, that that appears to be founded on a total misapprehension of the doctrine of retention. There is no foundation for retention in such a prospective and possible claim of debt.

Lord Curriehill concurred.

Lord Deas—There are some circumstances where, when parties litigate, the Court may equitably interfere to stop a party from enforcing even a legal right while the proceedings are going on. But it is not necessary to consider that here, for here the complainer does not plead any equitable considerations, but grounds his claim on the legal right of retention. If he has it, we have no discretion. If he has it not, then we cannot give it him. But whatever equitable claim he might have had, he cannot plead any legal right of retention.

Lord Ardmillan concurred.

Counsel:

Agent for Complainer— W. Officer, S.S.C.

Agent for Respondent— Lockhart Thomson, S.S.C.
1867