Scottish Court of Session Decisions

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Cite as: [1875] ScotLR 13_95, [1875] SLR 13_95

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SCOTTISH_SLR_Court_of_Session

Page: 95↓

Court of Session Inner House Second Division.

[Bill Chamber.

Saturday, November 27. 1875.

13 SLR 95

Clark

v.

Hamilton & Lee.

Subject_1Process
Subject_2Suspension of Charge
Subject_3Lis alibi pendens.
Facts:

Suspension of a charge upon an extract-decree having been brought upon the ground of an error in the messenger's execution, the charge was abandoned and while the question of the expenses in the suspension was still undisposed of, a second charge was given proceeding upon the same warrant. In a suspension of this second charge, held (dub. Lord Justice-Clerk) that as the first was withdrawn as a charge for payment, the second was competently brought.

Headnote:

Messrs Hamilton & Lee, stockbrokers, London, under a decree of the Court of Session, in January 1875 charged John B. Clark, solicitor, Mauchline, for payment of the sum of £494, 13s. 6d., together with interest, expenses of process, and dues of extract. The charge bore to be dated 1st December 1865, and required payment to be made within fifteen days after date. On 6th April 1875 Clark was imprisoned upon a warrant following
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this charge, and he remained in prison until suspension and liberation was applied for by him, when he was liberated of consent of the agents of the chargers. The following letter was written by them to Mr Clark's agent—“We have to intimate to you that, while denying your client's allegations in regard to the charge given him, our clients are not disposed to have a litigation on the subject, and therefore they pass from and abandon the charge complained of, and all that has followed upon it. But they maintain their plea against the competency of the suspension, and will crave that the note be refused, with expenses. If your client chooses to abandon the suspension, our clients will not object, on his paying them the expenses they have hitherto incurred, as these may be adjusted between us.

“ D. & W. Shiress.”

Lord Craighill, Ordinary on the Bills, passed the note of suspension and liberation, and thereupon the process became a depending process in the Court of Session. Lord Young, before whom the cause was brought, on the motion of Mr Clark, allowed a proof to both parties. Messrs Hamilton & Lee reclaimed against Lord Young's interlocutor to the Second Division, pleading that the suspender's pleas involved the matter of a messenger's execution, and that that could not be challenged except in a process of reduction.

The following interlocutor was pronounced:—

“ Edinburgh, 5th June 1875.—“The Lords having heard counsel on the reclaiming note for Hamilton & Lee against Lord Young's interlocutor of 19th May 1875, in respect the suspender proposes to bring an action of reduction sist further procedure in hoc statu.”

The respondents, upon the ground that the extract decree was not challenged in the suspension, applied to the Court to have the sist recalled, and in accordance with their application the Court, after hearing counsel, pronounced the following interlocutor:—

“ Edinburgh, 19th October 1875.—The Lords having heard counsel on the motion for the respondents: In respect there is no relevant statement on the record affecting the grounds and warrants of the charge libelled, refuse the suspension in so far as regards the grounds and warrants of the charge. Quoad ultra continue the cause.”

An action of reduction of the charge and all following thereon was accordingly brought by Clark, and, when the present question arose, it had not been disposed of. In the meantime Messrs Hamilton & Lee passed from the first charge, and proceeded with a second charge upon the same extract decree against Clark, who immediately brought a note of suspension of this second charge in the Bill Chamber. As regards the first charge, the only question undisposed of was that of expenses.

On 3d November 1875 the Lord Ordinary on the Bills ( Lord Rutherfurd Clark:) pronounced the following interlocutor:—“The Lord Ordinary having considered the note of suspension, with the answers and productions, refuses the note, and finds the complainer liable to the respondents in expenses, of which allows an account to be lodged, and remits the same to the Auditor to tax and report.”

The complainer reclaimed.

Argued for him—The chargers having previously given a charge for the same debt on the same grounds, and the validity of that charge being now the question in a process in dependence before the Court, the giving of a second charge was oppressive and incompetent. Lis alibi pendens.

Argued for respondents—The note having been presented without caution or consignation, ought to be refused. The validity of the extract decree charged upon not having been impunged, and the charge complained of in the former suspension having been passed from and abandoned, the present charge was competently given, and the suspension ought to be refused, with expenses.

Authorities— Aitken v. Dick, July 7, 1863, 1 Macph. 1038; Wilkie v. Yeaman, Jan. 21, 1828, 6 Sh. 421; M'Aulay v. Brown, Feb. 16, 1833, 11 Sh. 411; McLennan v. Dewar & Son, Dec. 23, 1843, 6 D. 553; Peattie v. Stodart, March 9, 1838, 16 Sh. 906.

At advising—

Judgment:

Lord Justice-Clerk—The original charge in this case was challenged on the ground that the messenger's execution bore to be dated on a day which had not then, and has not even yet arrived. After hearing parties on that question we allowed the suspension to stand over till a reduction was brought calling the messenger.

It was unfortunate that we should have been compelled to take that course when the charge itself was not to be insisted in. But as the matter of expenses remained to be decided, we had no alternative. We have now another charge on the same warrant, and another suspension of this second charge on the ground that the first suspension is still undisposed of. Matters are certainly not in a satisfactory position. My doubt is whether a charge can be said to be abandoned so long as it is insisted in to any effect whatever. The respondents refuse to pay the expenses of the first suspension though they have abandoned the charge as a charge. The suspension is therefore still in Court, and the charge insisted in to the effect of opposing decree for expenses; in fact, I am not sure that the respondents do not even still claim their own expenses.

Now, I have great doubts upon the authorities whether it is competent to give a new charge while a suspension of a former charge on the same grounds and warrants is still in Court undisposed of, and I should myself be disposed to pass the note.

Lord Gifford—The suspender's objection here is that there is a previous charge still insisted in to a certain extent. The objection is technical, for the charge itself has been abandoned unconditionally, and it can no longer be said that there are two charges the validity of both of which is maintained. It can only be said that the question of expenses in the first suspension still remains to be decided. It would be far too technical to hold that, merely because the question of expenses in the first suspension has not been disposed of, therefore a second charge cannot proceed. The first suspension stands refused so far as regards the grounds and warrant of the charge, in respect that no relevant ground affecting them has been stated, and after that, and the voluntary withdrawal of the charge by the charger, I can see no objection to the second

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charge. I can indeed imagine a case where there would be real lis alibi pendens when the question raised under the first suspension and interdict would come again on an objection to the second charge. In such a case an abandonment of the first charge without the first suspension being disposed of might not warrant a second charge. But that is not the case we have before us.

Lord Ormidale—This case has got into a most embarrassed condition. The first charge is one which cannot be maintained. The Lord Ordinary has found to that effect in a reduction of the messenger's execution. His interlocutor has still to be submitted to review. In the meantime we are pressed for judgment in the suspension of a second charge; that second charge proceeds upon the same warrants as did the first, but these warrants stand unimpeached, and the Court has found by express interlocutor that the first suspension was not intended to affect the ground of the charge at all. Now, because the first charge is standing so far as regards the question of expenses in the first suspension, the charge itself having been departed from as a charge, it is contended that this second charge is incompetent for the purpose of obviating payment of what appears to be an undoubted debt. I am of opinion that in the circumstances the second suspension is quite competent. There was a number of cases quoted to us in support of the opposite view, but they appear all to turn on the point of lis alibi pendens as the ground on which it was held that this second charge could not be maintained. None of the cases are in point here, where the first charge was withdrawn as a charge for payment before the second charge was given.

It would, I think, be a denial of justice to the charger were we to pass this note without caution; and the very fact that the suspender is, as acknowledged by his counsel, unable to find caution, is reason itself sufficient on the part of the charger in losing no time in taking what steps he can to recover his debt. In respect therefore of no caution, I think this note should be refused.

The Court adhered.

Counsel:

Counsel for the Defender— J. C. Smith. Agent— John Macmillan, S.S.C.

Counsel for the Respondent— Trayner. Agents— D. & W. Shiress, S.S.C.
1875