Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1901/38SLR0639.html
Cite as: [1901] SLR 38_639, [1901] ScotLR 38_639

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SCOTTISH_SLR_Court_of_Session

Page: 639↓

Court of Session Inner House First Division.

Saturday, June 1. 1901.

[ Lord Pearson,

38 SLR 639

Henderson

v.

Henderson's Trustees.

Subject_1Process
Subject_2Expenses
Subject_3Withdrawal of Reclaiming-Note
Subject_4Respondent Printing after Communication with Reclaimer.
Facts:

A reclaiming-note was sent to the Summar Roll on 16th May. On June 1, before the case had been put out for hearing, the reclaimers moved that the reclaiming-note be refused, and that they should be found liable in £2, 2s. of expenses. The respondents moved for full expenses, on the ground that after an interview on 27th May between the parties' agents, at which the reclaimers' agents had rejected a proposal for a joint print, and at which no indication had been given of any prospect of the reclaiming-note being withdrawn, the respondents had printed certain documents. The Court allowed £6, 6s. of expenses.

Headnote:

Alexander Henderson and others brought a petition for the sequestration of the trust estates administered under his marriage-contract trust. Answers were lodged for the Trustees William John Menzies, W.S., and John Henry Robertson, stockbroker.

On 4th April 1901 the Lord Ordinary ( Pearson) pronounced an interlocutor, whereby he sequestrated the said estates.

Against this interlocutor the trustees reclaimed.

On 16th May 1901 the case was sent to the Summar Roll.

On June 1 the reclaimers enrolled the case in the Single Bills, and moved the Court to refuse the reclaiming-note, and to find them liable in £2, 2s. of modified expenses.

Counsel for the respondents moved for full expenses, and stated that, after an interview between the parties' agents on 27th May at which the reclaimers' agents had rejected a proposal for a joint print, and at which no indication had been given of any prospect of the reclaiming-note being withdrawn, the respondents had printed certain documents. He argued that the previous communication with the other side distinguished the case from Gilchrist & Co. v. Smith, Jan. 9, 1901, 38 S.L.R. 238, and brought it within the rule of Little Orme's Head Limestone Company v. Hendry & Company, November 25, 1897, 25 R. 124.

Judgment:

Lord President—We think that the circumstances here are such as to lead to somewhat more liberal treatment than in the ordinary case, because it cannot be said here, as it has been said in some other cases, that the respondent has been premature in printing. The respondent communicated with the other side and they offered no discouragement to printing. We therefore think that the expense of printing the documents referred to should be allowed, but we consider that instead of making a remit to the Auditor, an award of £6, 6s., instead of the customary £2, 2s., will meet the justice of the case.

Lord Adam, Lord M'Laren, and Lord Kinnear concurred.

The Court found the reclaimers liable in £6, 6s. of modified expenses.

Counsel:

Counsel for the Reclaimers— Macphail. Agents— Oadell & Wilson, W.S.

Counsel for the Respondents— Berry. Agents— Hagart & Burn Murdoch, W.S.
1901

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