Scottish Court of Session Decisions

This Was A Petition Presented By Robert Robertson, Builder, Leith, For Recal Of Inhibition. The Petitioner Craved That Park, Dobson, & Company, Merchants, Leith, Should Be Found Liable In The Expenses Of The Petition.

The Circumstances In Which The Petition Was Presented Were As Follows:—on 23rd September 1892 Park, Dobson, & Company Had Served A Summons On The Petitioner For The Price Of Timber Supplied By Them To Him. The Summons Contained Warrant To Inhibit, And Inhibition Was Used Thereon, The Summons With Warrant And Execution Of Inhibition Being Duly Registered On 7th October 1892.

Shortly after the summons had been served it became apparent that the petitioner was unable to pay his debts, and the summons on the dependence of which inhibition had been used was never called in Court. After sundry negotiations and proceedings a composition arrangement was ultimately arrived at, all the creditors, including Park, Dobson, & Company agreeing by minute of concurrence duly signed by them to accept 2s. 6d. per £ in full settlement of this claim against the estate.

On 9th May 1896 the petitioner's agents wrote to the agents of Park, Dobson, & Company reminding them of the composition agreement and other circumstances, and sending them a discharge of the inhibition for signature, and intimating that on receipt of the discharge, which they stated was required to enable payment to be made, they would settle with them. On 11th May Park, Dobson, & Company's agents replied, saying that they were not aware whether their clients had agreed to accept the composition, but that they would communicate with them. On 19th May they wrote saying that Mr Dobson had no recollection of agreeing to take the composition. In reply the petitioners' agents wrote sending the formal concurrence to the arrangement duly signed by Park, Dobson, & Company. After further correspondence the petitioners' agents wrote sending a cheque for the amount of the composition due to Park, Dobson, & Company in full settlement of

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their claims, and on this cheque being returned with an intimation that it could not be accepted as in full of all claims they consigned the proceeds of it in bank. By the end of May Park, Dobson, & Company's claim was almost the only one outstanding. Ultimately on 13th June the petitioners' agents wrote—“We trust you have now gone into this matter, and that your clients have signed discharge of inhibition. The instructions which we have are to apply for recal of inhibition failing settlement by Wednesday, 17th curt.” They wrote again on 26th June—“We shall be glad if you now state whether your clients are to take payment of this consignation, or whether you leave us without alternative but to apply for recal of inhibition. If you drive us to the latter course we shall found on our correspondence with you and ask expenses against your clients.”

On 27th June Park, Dobson, & Company's agents replied—“We are favoured with your letter of yesterday's date. As we have already explained to you, our clients are not satisfied to take the money consigned by you. So far as they are aware there was no agreement to accept this composition, and unless their debt is paid in full at once we are instructed to proceed with the action for recovery.”

Thereupon the petitioners presented the present application setting forth the facts above mentioned, and craving the Court to recal the inhibition, and to grant warrant for marking the same as discharged on the register of inhibitions, and to find Park, Dobson, & Company liable in expenses.

Park, Dobson, & Company lodged answers in which they denied that they had ever agreed to accept the composition, but otherwise admitted the accuracy of the petitioner's allegations. They did not oppose the recal of the inhibition, but opposed the part of the prayer which craved that they should be found liable in expenses.

Argued for the petitioner—The petitioner was entitled to the expenses of this application— Laing v. Muirhead, January 28, 1868, 6 Macph. 282—report by the Auditor of Court there quoted, and authorities referred to by him. Where a pursuer who has used inhi-tion has been unsuccessful, he is bound to clear the record at his own expense. Here the respondents were under the same obligation, because the case had never been called in Court. The fact that there was a debt due by the petitioner to the respondents made no difference, because the inhibition was used not upon any document of debt, but on the dependence of the action, and such inhibition was of no avail unless followed up by decree in the action—Brsk. Inst. ii. 11, 3. Moreover, the petition had been rendered necessary by the respondents' unreasonable and nimious conduct in refusing to sign an extrajudicial discharge. Lord Teayner referred to Roy v. Turner, arch 18, 1891, 18 R. 718]. That case was distinguished from the present. There the pursuer who had used arrestment on the dependence had been successful. Here the respondents had not obtained decree, and by not calling their case in Court they were barred from maintaining that they were entitled to bring the action, and would have succeeded if they had gone on with it. In Roy the pursuers had some benefit from the arrestment, which secured funds for the payment to which they were ultimately found entitled, but here the inhibition had never been of any use to the respondents at any time, and consequently it was unnecessary. Moreover, inhibition was different from arrestment. Some formal document or decree was necessary to clear the record.

Argued for the respondents—The respondents were not bound to give the petitioner any assistance in removing an inhibition which had been justifiably used— Roy v. Turner, cit. This inhibition had been justifiably used. The debt for which action was brought was admittedly due. The fact that the action had never been called in Court owing to the impecuniosity of the petitioner could not affect the question. In such circumstances the petitioner was bound to get the record cleared at his own expense. The case of Roy v. Turner, cit., ruled the present. The petitioner was therefore not entitled to the expenses of this application.