Scottish Court of Session Decisions

Hare v. Stein, 9 R. 910, followed.

Ante, March 10, 1888, p. 389.

On 24th January 1888 David Wilkie Clarke, joiner and builder in Dundee, was charged at the instance of Mrs M'Nab and others, in virtue of an extract registered bond and disposition in security, and warrant following thereon, to make payment of the sums borrowed by him.

On 31st January 1888 Clarke presented a note of suspension, praying the Court simpliciter to suspend the said charge and whole grounds and warrants thereof. At the same time Clarke presented to the First Division a petition for recall of inhibitions which had been used against him by Mrs M'Nab and others. The grounds of suspension and for recall of the inhibitions were the same, and the suspension was allowed to lie over to await the decision of the First Division in the petition for recall of the inhibitions.

On 10th March 1888 the First Division refused the petition, and on 14th March 1888 the Lord Ordinary ( Trayner) pronounced this interlocutor in the procesof suspension:—“On the motion of the suspender refuses the note of suspension; finds the suspender liable in expenses; modifies the same to Five pounds five shillings sterling.

Mrs M'Nab and others reclaimed against the Lord Ordinary's interlocutor in so far as it modified the expenses to £5, 5s., and argued—The motion made to the Lord Ordinary was “to refuse the note with expenses.” His Lordship ought to have remitted the respondents’ account of expenses to be taxed by the

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Auditor in the usual way, instead of which, and without applying his mind to the matter, the Lord Ordinary had just fixed a random sum of £5, 5s. It was not disputed that the Lord Ordinary had the power to modify the expenses, but it was urged that this should only be done on cause shown— Hare v. Stein, June 8, 1882, 9 R. 910. That case was distinguished from the present, because in it the Lord Ordinary had applied his mind to the matter, and stated his reasons for what he had done in his note, while in the present case the Lord Ordinary had come to an arbitrary decision. The accounts should still be remitted to the Auditor.

Replied for the respondent (the suspender)—It was not accurate to say that the Lord Ordinary had not applied his mind to the question, because he had the whole matter fully before him. It was stated to him that there were two actions, and that all the accounts had already been paid in the petition for recall of the inhibitions in which the facts were the same. Two sets of fees could not be allowed in such circumstances where the papers were the same, and the £5, 5s. allowed amply covered all extra expense.

At advising—