Scottish Court of Session Decisions

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Cite as: [1886] SLR 23_532, [1886] ScotLR 23_532

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SCOTTISH_SLR_Court_of_Session

Page: 532↓

Court of Session Inner House First Division.

Saturday, February 6. 1886.

23 SLR 532

Stuart

v.

Moss.

( Ante, Deo. 5, 1885, supra, p. 231.)

Subject_1Process
Subject_2Expenses
Subject_3Effect on Original Action of Decree for Expenses in Accessory Action.

Expenses
Subject_4Compensation — Agent-Disburser.
Facts:

The defender in an action in a Sheriff Court for damages for breach of contract was assoilzied with expenses. The pursuer subsequently brought an action in the Court of Session for damages for slander alleged to have been committed in the course of the correspondence by which the contract was broken off. Held (distinguishing from Irvine v. Kinloch, Nov. 17, 1885, supra, p. 112) that the two actions being distinct, the defender was not entitled to have payment of the taxed expenses in the first made a condition of the pursuer proceeding with the second.

The defender in an action of damages for breach of contract was assoilzied with expenses. The pursuer subsequently brought another action for damages for slander alleged to have been committed in the course of the correspondence by which the contract was broken off. Decree for expenses to
Page: 533↓
which pursuer was found entitled in the second action pronounced in name of the agent-disburser, although the taxed expenses in the first action had not been paid.

Headnote:

Henry Stuart, pantomimist, sued H. E. Moss in the Sheriff Court at Edinburgh for damages for breach of a contract by which Stuart was to have performed at Moss’ (defender's) theatre. Stuart was unsuccessful in this action, and was found liable in expenses, which were taxed at £35. Moss in the course of the correspondence by which he broke off the engagement with Stuart made use of certain expressions which were founded on by Stuart as slanderous, and for which he raised the action of damages reported supra, p. 231. After issues had been adjusted on a reclaiming-note, and the case remitted for trial to the Outer House, Moss moved the Lord Ordinary (Lee) to postpone the trial until Stuart had paid the expenses in the Sheriff Court action. The Lord Ordinary refused the motion.

“ Note.—In the event of the defender intimating tomorrow his intention to reclaim, the pursuer offered to consent to a delay to the 19th February to enable the reclaiming-note to be disposed of. My reason for refusing the motion as made in the present action is entirely independent of and unconnected with the Sheriff Court action for breach of contract. The case in this respect is different from Irvine v. Kinloch, November 17, 1885, 13 R. 172, and cases there cited.”

Moss reclaimed.

Judgment:

At advising—

Lord Justice-Clerk—This case is not at all in the same category as Irvine v. Kinloch. Here the two actions are totally distinct. One is an action of damages for breach of contract, and apparently one of the parties to that action wrote a letter to the effect that the other party was of no use in his profession. He professed to be manager of a troupe of actors, and the statement was that they were not up to the mark, and for this alleged slander he has brought the present action of damages. He was unsuccessful in the other action, and has been found liable in expenses, and the motion now is that payment of these expenses should be a condition of proceeding to trial in the action founded on the alleged slander. I can see no ground for sisting this action till these expenses have been paid when the two actions are so completely different, and therefore think we should adhere to the Lord Ordinary's interlocutor.

Lord Young, Lord Craighill, and Lord Rutherfurd Clark concurred.

The Court adhered, found the pursuer entitled to the expenses of the reclaiming-note, and remitted the same for taxation.

Decree for the taxed expenses, amounting to £15, was moved for in name of the pursuer's agent as agent-disburser. The defender resisted the motion, pleading that he was entitled to set off the expenses to which he had been found entitled in the Sheriff Court. Authorities— Portobello Pier Company v. clift, Nov. 16, 1877, 4 R. 685; Paterson v. Wilson, Dec. 20, 1883, 11 R. 358.

The Court granted decree in name of the agent-disburser.

Counsel:

Counsel for Pursuer— A. S. D. Thomson. Agent— M. J. Brown, S.S.C.

Counsel for Defender— Rhind— Baxter. Agent— Robert Menzies, S.S.C.
1886