Scottish Court of Session Decisions

The Judicature Act 1825 (6 Geo. IV, cap. 120), sec. 10, after providing for the making up of a record which shall foreclose the parties in point of fact, inter alia enacts— “the pursuer having it in his power notwithstanding to abandon the cause on paying full expenses or costs to the defender, and to bring a new action if otherwise competent.” The Act of Sederunt of July 11, 1828, passed in pursuance of the Judicature Act 1825, by sec. 115 enacts—“And whereas it is enacted by section 10 of the Act that the pursuer shall have it in his power to abandon the cause on paying full expenses to the defender, and to bring a new action if otherwise competent, it is declared that this applies only to the case of the pursuer abandoning his cause before an interlocutor has been pronounced assoilzieing the defender

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in whole or in part, or leading by necessary inference to such absolvitor, after which it shall not be competent for him to do so in regard to that part of the cause decided by said interlocutor either expressly or by necessary inference; reserving, however, to him any remedy by a new action which may be competent to him under subsisting regulations.”

On 9th June 1005 John Bethune Walker Lee, Solicitor in the Supreme Courts, Edinburgh, brought an action of declarator and for payment of a casualty in respect of certain heritable subjects in the town of Mauchline, Ayrshire, against Mrs Martha Jamieson or Pollock and others, trustees under the trust-disposition and settlement, dated 30th October 1903 and recorded 6th October 1904, of the late Andrew Pollock, agricultural engineer, Mauchline. In the course of the proceedings Lee lodged a minute of abandonment and subsequently moved for leave to withdraw it.

The circumstances of the case are given in the opinion of the Lord Ordinary ( johnston), who on 15th March 1906pronounced this interlocutor:—“Refuses the pursuer's motion to withdraw the minute of abandonment lodged by him in respect the pursuer has failed to pay the defenders' taxed expenses: Assoilzies the defenders from the conclusions of the summons, and decerns: Approves of the Auditor's report on the defenders' account of expenses, and decerns against the pursuer for payment to the defenders of the sum of £130, 13s. 9d. sterling, being the taxed amount of said account.”

Opinion. — “Mr Lee raised this action, which is the statutory action for recovery of a casualty, in June 1905. The record was closed on 18th July 1905 and the case heard in the procedure roll. It turned out that the summons was out of shape, and I allowed an amendment on condition of payment of a modified sum of expenses, and the condition having been fulfilled allowed a proof to be taken on 1st February 1906. The identity of the defenders' lands is not in dispute. But there is a difficult question of fact at issue regarding the limits of the pursuer's superiority, and whether it covers the defenders' lands.

“In the course of procedure between the closing of the record and the diet of proof Mr Lee gave great trouble by non-production of the titles on which his condescendence founds, and he received great and unusual indulgence not only from me but from his opponents. On 22nd December 1905 a diligence for recovery of documents was granted to the defenders. But on 17th January 1906 I had peremptorily to order Mr Lee to lodge in process the documents enumerated in a list. It came to be informally understood that Mr Lee would not be able to proceed with his proof on 1st February 1906, but it was only late on the previous day that he lodged the minute of abandonment ‘in terms of the statute.’ Whereupon on the morning appointed for the proof (1st February) I wrote the usual interlocutor—‘In respect of the minute of abandonment for the pursuer, Discharges the diet of proof fixed for this date: Appoints the defenders to lodge an account of their expenses, and remits, &c.’ The defenders' account of expenses was lodged on 15th February and taxed on 23rd February. As taxed it amounts to the sum, large for the point which the procedure had reached, of £130, 13s. 9d. The amount has, however, been a good deal increased by Mr Lee's conduct of the case.

On 21st February, i.e., before taxation of the account., Mr Lee verbally moved for leave to withdraw his minute of abandonment, and referred me to the two precedents of Tod, 16 S.L.R. 718, and Dalgleish, 23 S.L.R. 552. I intimated verbally that assuming it to be a matter of discretion I was not disposed to grant leave to abandon, and explained that I should like to look at the account of expenses after taxation.

On 28th February I was moved to approve of the Auditor's report on the taxation of the account of expenses, and Mr Lee renewed his motion for leave to withdraw his minute of abandonment, and asked me to pronounce such interlocutor as he might take to review.

On looking more particularly into the matter of procedure, I have come to the conclusion that notwithstanding the above precedents I have no discretion in the matter. If I thought otherwise, as I have already said, I am not disposed to exercise that discretion in Mr Lee's favour. I desire to say, however, that I do not think Mr Lee's action either vexatious or frivolous. I think that there was a fair question to be litigated, and requiring with a view to decision to be cleared up by proof. My reason for refusing the appeal to my discretion would be that I think Mr Lee has had already more than the indulgence due to a litigant.

But as in my judgment I have no discretion, I have still to determine what is the result of Mr Lee having lodged a minute of abandonment and failed to pay the taxed amount of the expenses.

Is Mr Lee entitled to withdraw his minute of abandonment as matter of right and to ask for a new diet of proof, and if so, on what conditions? or,

Are the defenders entitled to hold him to his abandonment, and in respect of his failure to implement the condition of abandonment, to require me to pronounce decree of absolvitor with expenses.

The abandonment is under the Judicature Act 1825 (6 Geo. IV, cap. 120), section 10, and the relative Act of Sederunt, 11th July 1828, section 115, the terms of which I need not quote.

In Ross v. Mackenzie, 16 R. 871, the Lord President (Inglis) said—It seems to me that the failure to pay expenses after the minute of abandonment wras lodged merely deprived the pursuer of the privilege of abandonment.’ That language is not inconsistent with the view that he may still proceed, though I am far from saying that that was his Lordship's meaning.

“The other cases which I have found bearing on the subject are— Lawson v. Low, 7 D. 960, which makes it clear that after the

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minute of abandonment, until expenses are paid, and the Court sustains the minute and in respect thereof and of the payment of expenses dismisses the action, the action remains in dependence. At the same time the Court held in that case that notwithstanding such dependence the pursuer was not prevented convening his opponent in a new action, provided he went no further than merely convening him until the abandonment of the first action was sustained and the first action taken out of the way. But Lord Mackenzie gives expression to an important dictum. ‘I do not think,’ he says, ‘that the statute gives a party power of abandoning an action until the expenses are paid or consigned. He may say he abandons it, but that is only abandoning his own pleas, for the opposite party may still take judgment against him.’ This would iu my opinion entitle the defender to crave, on the pursuer's failure to fulfil the condition of abandonment, judgment of absolvitor.

Cormack v. Waters, 8 D. 889, merely confirms the view that the case is still in dependence notwithstanding a minute of abandonment, until the minute is sustained, which it cannot be until the expenses are paid.

Muir v. Barr, 11 D. 487, is merely though most emphatically to the same effect.

I may also refer to White v. Duke of Buccleuch, L.R., 1 Scotch and Divorce Appeals, 70.

Upon a consideration of the point, and in view of these authorities, the opinion to which I have come is—(1) that I have no discretion in the matter; (2) that if I have, the pursuer's motion should be refused; and (3) that the pursuer is not now entitled to proceed, even on condition of paying the expenses rendered useless by his abortive abandonment, but that the defenders are entitled as matter of right to be assoilzied with expenses, and I shall grant decree accordingly.

I have explained the reasons fully, so that the pursuer may have my judgment reviewed if so advised by the Inner House.”

The pursuer reclaimed, and argued—It was competent to withdraw the minute of abandonment on payment of the expenses thereof, the Lord Ordinary having no discretion in the matter—Todd & Higginbotham v. Corporation of Glasgow, July 4, 1879, 16 S.L.R. 718; Dalgleish v. Mitchell, March 19, 1886, 23 S.L.R. 552; Boss v. Mackenzie, June 26, 1889, 16 R. 871, 26 S.L.R. 600. There was nothing in the Judicature Act 1825 or the Act of Sederunt of July 11, 1828, relative thereto, to constitute a minute of abandonment a judicial contract. The Lord Ordinary's interlocutor should be recalled.

Argued for the defenders and respondents—The whole matter was in the discretion of the Lord Ordinary—Todd & Higginbotham v. Corporation of Glasgow, and Dalgleish v. Mitchell, ut supra. His interlocutor was correct according to the established practice—Coldstream's Court of Session Procedure (4th ed.) p. 110 note A— and should be sustained.