Scottish Court of Session Decisions

Lord President—It so happens that there are here two actions—one an action of damages for seduction at the instance of the pursuer, and the other an action, also at her instance, for aliment for the child which was the fruit of the intercourse founded on as giving rise to the claim of damages for seduction. It is not disputed that both these claims might have been maintained in the same action, but the pursuer chose to bring an action of damages for seduction before the birth of the child, which, however, was then in utero. If the two claims had been made in the same action, and the pursuer had failed in the claim for damages for seduction but succeeded in the action of aliment, the Court might possibly have given no expenses to either party, there having been divided success. The pursuer has failed in one and has succeeded in the other of the two actions which she brought, the decree for expenses has not been extracted in either case, and both actions are still before the Court. It might possibly have been different if extract had been obtained, but I suppose that if a motion had been made for extract it might have been resisted on the ground that extract should be superseded until the other action was decided. It seems to me that the right of an agent-disburser, which is derived from the client, cannot be pressed so as to do injustice to the other party by preventing the one claim for expenses being set off against the other. It would be a strong thing to allow an agent-disburser, in aid of his derivative right, to intervene and prevent justice being done between the principal parties. I therefore think we should not sustain the claim of the agent-disburser, but that we should give decree for the defender's expenses in the action of seduction under deduction of the pursuer's expenses in the action for aliment.

Lord M'Laren—I am of the same opinion, and only add that I wish to reserve my judgment as to whether the right to set off unextracted decrees for expenses is not a universal right where the cases are between the same parties. On this question I cannot attach much weight to the view of the Court in the Esk Pollution cases in regard to the conjunction of actions against different defenders, for where the defenders are different a decree for expenses against one defender could not possibly be set off against a decree for expenses in favour of a different defender. The question only arises where the parties to the two actions are the same. Now, it is quite settled that where mutual claims are the subject of different actions, the Court may supersede extract of the principal decree under one action until decree shall be pronounced in the other in order that the right of compensation may not be defeated, and it seems to me that extract of a decree for expenses could be superseded in the same way and for the same purpose as a principal decree.

In that case, and also in the case where, as here, the parties have chosen to leave the decrees for expenses unextracted, I should wish to keep open the question whether compensation ought not to be allowed irrespective of the nature of the two actions. I only say this that I may not be supposed to limit my opinion to cases where the actions are of a cognate character. In such cases I agree that it is in accordance with the best authority to allow compensation for the sums decerned for as expenses of process.

Lord Kinnear—I agree for the reasons stated by your Lordship in the chair, and I also assent to what Lord M'Laren has said, that the question as to the conjoining of a number of different defenders in one action belongs to a different chapter of law from that which we are now considering.

Lord Adam concurred.