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[Sheriff of Stirling, Dumbarton, and Clackmannan.
Held that the unsuccessful party in an action against whom decree had been pronounced for expenses was not entitled to set off against the account of the successful party the expenses for which, prior to the said decree being pronounced, the former had obtained and extracted a decree against the latter in another action relating to the same subject-matter.
Decree for expenses accordingly allowed to go out in name of the agentdisburser of the successful party. Portobello Pier Company v. Clift, March 16, 1877, 4 R. 685, distinguished.
Philip Parias raised an action in the Sheriff Court of Clackmannan against Pasquale di Paolo concluding for payment of £30, being the balance of the purchase price of the pursuer's ice—cream business which the defender had contracted to purchase.
The defence was that the pursuer having failed to implement a material part of the contract entered into between the parties, the defender was entitled to refuse to implement his obligation thereunder.
On 17th January 1896 the Sheriff-Substitute ( Johnstone) assoilzied the defender on the defence stated, and his judgment was acquiesced in.
On 1st April 1896 decree for expenses was pronounced against the pursuer, on 20th April this decree was extracted, and on 24th April the pursuer was charged thereon. No payment of expenses was made by the pursuer.
In March 1896 Paolo, the successful defender in the above-mentioned action, raised an action in the same Court against Parias to have him interdicted from carrying on the business of an ice-cream merchant within a radius of ten miles of Alva.
The complainer founded upon the agreement which he had repudiated in the previous action, and on 20th April 1896 the Sheriff-Substitute ( Liddell) found that the contract founded on by the complainer had been discharged in virtue of the judgment in the previous action, and refused interdict.
After sundry procedure the Sheriff ( Lees) adhered to this interlocutor on 2nd June 1896.
On 8th July 1896 the Sheriff-Substitute ( Johnstone) approved of the Auditor's report on the defender's account of expenses, and allowed decree for said expenses to go out and to be extracted in name of a solicitor at Alva as agent-disburser for the defender.
The complainer appealed against this interlocutor, and, relying on the case of the Portobello Pier Company v. Clift, March 16, 1877, 4 R. 685, maintained that the account of expenses in the first action, which had not yet been paid, should be set off against the account of expenses in the present action, and that the complainer should be found liable for payment of the balance only.
The respondent argued that the case was distinguishable from Clift, the two actions not being concurrent, but the former one having been disposed of and decree extracted before judgment was pronounced in the latter.
Lord President—I must own that I have some sympathy with the proposal to refuse to allow decree to go out in the agent's name, but at the same time this is a matter of right, and we can only assent to Mr Wilson's proposal if it falls within some recognised rule of practice. Now, it seems to me that the fatal defect of the argument is that the decree in the other action in the Sheriff Court was granted and had been extracted before this appeal ever came into Court. It had therefore passed into the region of a judgment debt, historically, no doubt, arising out of a dispute on the same subject-matter, but not out of a living proceeding.
I am of opinion, therefore, that the case of Clift does not apply, and that we cannot refuse the motion.
The Court approved of the Auditor's report, decerned against the pursuer for the taxed amount of the defender's account, and allowed the decree therefor to go out in the name of the agent-disburser.
Counsel for the Complainer— Wilson. Agents— J. B. Douglas & Mitchell, W.S.
Counsel for the Respondent— Forsyth. Agent— W. Ritchie Rodger, S.S.C.