Scottish Court of Session Decisions

On 27th February 1866 Robert Wallace raised an action concluding for £2000 in name of damages for breach of agreement, against James Henderson, Esquire of Bilbster, in Caithness. He also concluded for count and reckoning as to the rents of certain subjects belonging to him, with which the defender bad intromitted.

On 11th January 1867 the Lord Ordinary ( Kinloch) reported the case on issues to the First Division, and of that date the Court pronounced this interlocutor:—“Find that there are not on record averments relevant or sufficient to warrant the issues proposed by the pursuer: Remit to the Lord Ordinary to dismiss the action in so far as regards the first conclusion for £2000; and to proceed with the other conclusions of the action: Find the pursuer liable to the defender in expenses since the date of the closing of the record, and remit,” &c.

Mr Henderson lodged his account, had it taxed and approved of, and extracted and charged on the decree—Wallace not having paid the expenses—and the action fell asleep.

On 12th October 1874 Wallace, with the concurrence of his wife, raised another action of count and reckoning with regard to the rents of the same subject against Mr Henderson.

The Lord Ordinary ( Young) on 4th March 1875 sustained the defender's plea of lis alibi pendens, in respect of the former action being still in Court, and dismissed the action, with expenses.

The First Division, on advising a reclaiming note on 20th July 1875, recalled the Lord Ordinary's interlocutor, and sustained the action as a good action with regard to the rents from and after the date of the signeting of the summons in the first action, with £5, 5s. of expenses.

This second action was subsequently remitted to the Lord Ordinary's bar, in which the former action was pending. Wallace had died before the reclaiming note in the second action was lodged. His widow was decerned executrix-dative to him, and as such, after the first action had been wakened, was sisted in both actions.

The causes were then put to the roll by Mrs Wallace, to have them conjoined.

The defender opposed this motion, on the ground that no step could be taken in the first action until the expenses found due in the Inner House in January 1867 had been paid, with interest, and relied on the case of Struthers v. Dykes, June 16, 1846, 8 D. 815, where payment of such expenses were held to be a condition-precedent to going on with the action. With respect to the interest upon the extracted decree, the defender referred to the case of Dalmahoy & Cowan v. Mags. of Brechin, Jan. 5. 1859, 21 D. 210.

The pursuer denied that Struthers v. Dykes had ever been followed as a precedent, and argued that at all events, as the defender could have imprisoned Wallace upon his failure to pay when charged, he had no right to interest. It was also maintained that the pursuer was entitled to deduct the five guineas of expenses, to which she had been found entitled by the First Division in the second action, from any payment made to the defender in name of expenses.

The Lord Ordinary, on the authority of the case of Struthers v. Dykes and Dalmahoy & Cowan v. Mags. of Brechin, refused to conjoin the actions until the expenses decerned for in the first action had been paid, with interest, but under deduction of the five guineas decerned for in the pursuer's favour in the second action.

Page: 182↓

The pursuer thereupon paid the expenses, with interest, but under deduction of £5, 5s. decerned for on 20th July 1875, and the causes were subsequently conjoined.