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Cite as: [1872] ScotLR 9_366, [1872] SLR 9_366

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SCOTTISH_SLR_Court_of_Session

Page: 366↓

Court of Session Inner House First Division.

Saturday, March 9. 1872.

9 SLR 366

Bannatine's Trs.

v.

Cunninghame.

(Ante, p. 209.)

Subject_1Expenses
Subject_2Count and Reckoning.

Facts:

In an action of count and reckoning the defender, who at the outset of the cause had tendered a sum exceeding what was ultimately fund due by him, found entitled to his whole expenses, without any special inquiry into the amount of success of the parties on the several points of dispute.

Headnote:

In accordance with the remit by the Court, of date 12th January 1872, the accountant, Mr A. W. Robertson, C.A., issued a Supplementary Report, in which the balance due by the defender as at 8th January 1869 was brought out as £187, 13s. 3d., with interest on £74, 3s. 11d., the capital sums forming part thereof, from that date until paid.

The case again came up on the accountant's report, and for discussion of the question of expenses.

At advising—

Judgment:

Lord President—There has been a great deal of litigation in this case with a very small result, and one cannot help inquiring whose fault it has been that this should be the case. This is the only pertinent inquiry remaining. Now, looking to the whole history of the cause, I cannot help thinking that the proceedings of the pursuers have been nimious in the extreme. This is an accounting which should have been, and which might have been, conducted on an amicable footing, and

Page: 367↓

it has been the pursuers' fault that it has not. Mr Cunninghame rendered an account before this action was raised, in which he included a sum which he was not entitled to charge. It was a sum which he had paid away without any legal obligation or right to do so, but which he paid in perfect bona fides, and from his knowledge of the testator's own real intention. On the first opportunity he has after this, he says at once, I don't mean to insist in this charge, and had rather give it up than dispute about it. That tender he undoubtedly made in his defences to this action, and if that tender had been accepted by the pursuers, the result would have been to leave them in 1869 with a sum in their hands £18 or £20 greater than that which they have now actually got, excluding interest. But instead of accepting that tender the pursuers have gone on since, opening up every contentious point, and of course driving the defender to contest each point. Under these circumstances, I do not think that the question of expenses should depend at all upon the preponderance of success in these different disputes. The question of expenses should rather depend upon whether the suit was a justifiable one or not in its origin, and whether it ought to have been brought. I think that the pursuers ought to have accepted the offer made in the defences, and that their proceedings since then have been nimious and vexatious. The conclusion to which these considerations lead me is, that the defender should be found entitled to the whole expenses of the cause.

The other Judges concurred.

The Court decerned in terms of the accountant's supplementary report, and found the defender entitled to the whole expenses in the cause.

Solicitors: Agent for Pursuers— William Kelso Thwaites, S.S.C.

Agents for Defender— A. & A. Campbell, W.S.

1872

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