Scottish Court of Session Decisions

In April 1860, the Parochial Board of Denny raised an action of count and reckoning against Mr James Laing, writer, Denny, claiming a sum of £2000, or such other sum as should be found due to them as the balance on his intromissions as Inspector of Poor of Denny from September 1845 to August 1858. On the dependence of this action inhibition was used, attaching a considerable amount of heritable property belonging to the defender; and arrestments on the dependence were also laid in the hands of many persons his debtors. After a remit to an accountant in the said action, the Lord Ordinary ( Kinloch), on 23d January 1867, pronounced an interlocutor finding the defender entitled to absolvitor with expenses, and, after taxation of expenses, another interlocutor (20th March 1867) assoilzing and decerning for expenses. These judgments having become final, the defender Mr Laing applied to the Parochial Board for a discharge of the inhibition, which the Board refused to grant, except at his expense. He therefore presented this petition, praying the Court to recall the inhibition, to grant warrant to the keeper to mark the same as discharged in the register, and to find the Board liable in the expenses of the application. The Court, on 25th June last, before answer, remitted to the auditor of Court, as a man of business, to report at whose expense, according to the understanding and practice of the profession, the proceedings necessary to clear the record of an inhibition used by the pursuer, on the dependence of an action in which the defender has obtained decree of absolvitor with expenses, should be taken; and, in particular, to report (1) Whether an extract of the decree absolvitor presented to the keeper of the register of inhibitions will enable the defender to obtain the inhibition to be scored on the record; and, in that case

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at whose expense the necessary procedure, including the extracting of the decree, should be taken? And (2) whether, in the event of the inhibition being discharged extrajudicially, the expense of the deed of discharge, and its presentation to the keeper of the register, and relative marking in the record, is chargeable against the pursuer or defender; or, if not wholly payable by one or the other, in what proportion it is chargeable?

The auditor made the following report:—

“First, The auditor cannot, either from his own experience, or from the inquiries he has made, report any general understanding or practice of the profession as to the party at whose expense “the proceedings necessary to clear the record of an inhibition used by the pursuer on the dependence of an action in which the defender has obtained decree of absolvitor with expenses, should be taken.” The auditor understands the expenses referred to in this part of the remit to mean the expense of a voluntary and extrajudicial discharge. Cases of the kind supposed are so rare, that it is not surprising that, in regard to such cases, there should be difficulty in discovering anything entitled to the name of professional understanding and practice. The question which has been raised may, therefore, it is thought, be regarded as an open one. It is of considerable importance that, if possible, it should be disposed of in such a manner as to regulate future practice.

The parties have referred the auditor to various decisions as supporting (by analogy, if not directly) the views maintained by them respectively. The authorities relied on by the petitioner are the following cases:—

1. Earl of Stair, 21st Dec. 1822; Session cases (N.E.), 2, 100.

2. Livingston, 21st Feb. 1824; Session cases (N.E.), 2, 611.

3. White, 5th March 1824; Session cases (N.E.), 2, 640.

4. Muckarsie, 5th March 1824; Session cases (N.E.), 2, 640.

5. Kyd, 11th March 1826; Session cases (N.E.), 4, 557.

6. Pedie, 11th March 1830; Session cases, 8, 710.

7. Sheriff, 22d Jan. 1842; Session cases (2d series), 4, 453.

The respondent has referred to the following cases:—

1. Gordon, 12th May 1827; Session cases (N.E.), 5, 564.

2. Rennie, 5th March 1820; Session cases, 7, 545. The reporter has carefully examined these cases, and he may shortly state the import of each as understood by him.

I.— Cases cited by Petitioner.

1. 1. Earl of Stair.—Here an inhibition was recalled on caution, with expenses; the Court“ considering the inhibition under all the circumstances of the case to have been unnecessary and vexatious.”

2. 2. Livingston.—In an action at the instance of Learmonth & Company v. Livingston (the petitioner's father), inhibition was used on the dependence. Livingston was assoilzied. An application for recal was presented by Livingston's son, but was opposed by Learmonth & Company, on the ground that they were entitled to insist in their claim without raising a new action. The Court recalled, with expenses.

3. 3. White.—In this case an inhibition was recalled, and the respondent found liable in expenses. The rubric runs thus—“A defender who has been assoilzied from an action, is entitled, on the refusal of the opposite party, to apply to the Court for recall of an inhibition on the dependence.”

4. 4. Muckarsie.—In this case a pursuer, after a verdict in his favour, used inhibition against the defender; but the latter had intimated his intention to pay expenses. The pursuer refused to discharge the inhibition, although a sum was consigned to meet the expenses, and the Court recalled the inhibition “chiefly on the ground that the inhibition was nimious after the offer of payment.”

5. 5. Kyd.—In this case the respondent and his agent were both found liable in the expenses of the recall of inhibition, on the ground that the inhibition had “been used nimiously and oppressively by an agent, without a mandate from his client;“the Lord Justice-Clerk (Boyle) remarking that he “never saw a more unjustifiable use of diligence.”

6. 6. Pedie.—This was an application for recal of an inhibition, on the ground that it was “nimious and oppressive.” The Court recalled on special grounds (although the Lord Ordinary's interlocutor dismissing the action, on the dependence of which the inhibition had been used, was subject to review), and found the petitioner entitled to expenses.

7. 7. Sheriff.—In this case no answer had been returned by the respondent to the petitioner's extrajudicial application for discharge of the inhibition. In the petition to the Court, the petitioner pleaded both that the action had been dismissed, and also that the inhibition “was at first unwarrantably used without a mandate from the pursuer.” Answers were lodged expressing the respondent's willingness that the inhibition should be recalled, but objecting to the petitioner's claim for expenses, on the ground that the petitioner had taken the most expensive mode of getting the inhibition removed, and that an extract of the decree dismissing the action was sufficient, or that the petitioner might have enrolled that action before the Lord Ordinary, “and obtained his Lordship's authority to get the inhibition scored in the register.” The Court recalled the inhibition with expenses, “except those of an appendix of correspondence, which was considered unnecessary.”

II.— Cases cited by the Respondent.

1. 1. Gordon.—In this case inhibition had been used on the dependence of an action, which was dismissed under reservation of the pursuer's right to bring a new action. The inhibition was recalled of consent; but the expense of the application was refused, on the ground “that as the diligence fell by the dismissal of the summons, on the dependence of which it was executed, it was only necessary to register a discharge in order to clear the record, and that he” (the petitioner) “had never made any extrajudicial application for a discharge.”

2. 2. Rennie.—This case is very shortly reported, thus:—“This was an application for recall of inhibition in which the sole question related to the expenses. The Court refused them.”

   The session papers (to which the reporter was referred by the respondent) show that in this case the respondents were willing to grant a discharge at the expense of the petitioner.

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   The inhibition had been used on the dependence of an action of count and reckoning, which was conjoined with a counter-action. The conjoined actions were ultimately submitted to arbitration. The referee disposed of the reference by a finding for a small sum in favour of the petitioner; but each party was ordained to pay his own expenses. The case had been one of mixed success on the merits; and, in the circumstances, the Court refused the expenses of the judicial application, holding apparently that the respondents, although bound to discharge the inhibition, were not liable for the expense of the discharge.

The conclusion at which the reporter has arrived from his examination of these authorities is, that, except in cases where the use of diligence was to be regarded as nimious and oppressive, or at all events as improper, the expenses of discharging inhibitions has been thrown on the party requiring the discharge, and that beyond this no rule of general application has hitherto been adopted by the Court.

It is for the Court to determine as to the expediency of continuing to dispose of each case of the kind under consideration on its own special merits, or laying down a general rule as to the expense of discharging diligence used on the dependence of actions. The reporter has some hesitation in offering any remark on such a question, and he trusts that, in bringing under the notice of the Court the views which have occurred to him bearing upon it, he will not be regarded as transgressing his proper limits. The Act of Sederunt of 19th December 1835 contains a provision in those terms:—“In order that the expense of litigation may be kept within proper and reasonable bounds, it is hereby declared that in taxing accounts between party and party only such expenses shall be allowed as are absolutely necessary for conducting it in a proper manner, with due regard to economy.” The effect of this rule as hitherto acted upon has been to lay upon parties successful in litigations a very considerable portion of the expenses incurred by them in conducting their cases; but, by prudent management, litigants have the amount of this burden to a considerable extent in their own power. The expense, however, which may be laid upon a litigant ultimately successful, during the course of an action, by the use of diligence on the dependence, is in a position altogether different. He cannot in any way control such expense, which in many instances forms a considerable addition to the expenses not recoverable by him from his opponent as expenses of process. It is for the consideration of the Court whether the use of diligence on the dependence of an action (while the issue is uncertain), should not be wholly at the risk of the party availing himself of the privilege which the law gives him for his security; and it humbly appears to the reporter that much uncertainty and expense would be saved to parties were it understood that, in ordinary cases, the expense of discharging diligence on the dependence of an action, in which the party using such diligence is wholly unsuccessful, must be borne by him, and not by the opposite party who has prevailed in the litigation.

Second. The reporter has already exhausted the remit made to him in so far as relating (whether generally or particularly) to the party by whom the expense of discharging the inhibition shall be borne. It only remains for him to report upon the question, “whether an extract of the decree absolvitor presented to the Keeper of the Register of Inhibitions will enable the defender to obtain the inhibition to be scored on the record.’ On that point he has to report in the negative. The keeper of the record requires as his warrant a specific recall of the diligence either by the extrajudicial act of the party who used the diligence, or by a warrant of the Court; reference in either case being made to the inhibition by the date of its registration. It seems to be competent for the Court, when pronouncing absolvitor, to recal the diligence, and to grant warrant for scoring the inhibition on the record if moved to do so. In the present case no such motion was made. In the case of Sheriff, already referred to, the omission to move for a warrant in similar circumstances does not seem to have prevented the Court finding the petitioner entitled to expenses.

The reporter thinks it right to state that he has examined the discharge, No. 16 of process, which, from its date (June 13, 1867), appears to have been executed subsequent to the boxing of the petitioner's application to the Court. It discharges the inhibition, and also the arrestments used by the pursuer on the dependence, and authorises a marking to be made on the margin of the record; but the discharge is not, in the opinion of the reporter, duly stamped, being written on a receipt-stamp. Not being an acknowledgment for money, and containing a warrant of registration, it ought, he thinks, to have been impressed with the proper deed-stamp duty of 35s. It is, however, proper to explain that in practice the keeper of the record of inhibition receives and registers discharges written on receipt-stamps, not regarding it as his duty to consider the sufficiency of the stamp; and that a considerable number of the discharges presented to him for registration in his record are engrossed not on deed stamps but on greceipt-stamps.”

The report having been lodged, the respondents withdrew their opposition; and accordingly, in respect of no appearance, the Court recalled the inhibition with the expenses as craved.