Scottish Court of Session Decisions

This case is reported ante ut supra.

John Bethune Walker Lee, the pursuer in an action for payment of a casualty, against Martha Jamieson or Pollock and others, Andrew Pollock's testamentary trustees, had on the day prior to the diet for proof lodged a minute of abandonment. This minute the Lord Ordinary ( Johnston) allowed subject to payment of the defenders' expenses. These expenses when taxed amounted to £130, 13s. 9d. Lee, prior to the taxation, had proposed to withdraw his minute, and, subsequent thereto, moved accordingly. His Lordship refused this motion unless the defenders' expenses were paid, and on these not being paid he assoilzied the defenders. The First Division, however, on a reclaiming note, recalled his Lordship's interlocutor by one, dated 2nd June 1906, in these terms—“Recal the said interlocutor: Sustain pursuer's motion to withdraw his minute of abandonment: Allow him to withdraw said minute accordingly: Remit the cause to the Lord Ordinary to proceed therein as to him may seem just: Find the pursuer entitled to expenses since the date of the interlocutor reclaimed against, and remit the account thereof to the Auditor to tax and to report to the said Lord Ordinary, to whom grant power to decern for the amount of said expenses.” [ Vide also 43 S.L.R. 657.]

The Lord Ordinary thereafter, on 23rd June 1906, pronounced this interlocutor:—“The Lord Ordinary in respect of the interlocutor of the 2nd instant by the First Division, and having heard parties on the motion of the pursuer to have another diet of proof fixed, and on the motion of the defenders for absolvitor, Finds the pursuer entitled to have such diet of proof fixed, but only on condition of his paying to the defenders the sum of £130, 13s. 9d., being the taxed amount of their account of expenses, under deduction of the sum of £18, 8s. 8d., being the taxed amount of the pursuer's account of expenses, under certification that in the event of the pursuer failing to make payment of the same within fourteen days of this date, decree of absolvitor will be pronounced as moved for by the defenders.”

And his Lordship, on 11th July 1906, pronounced this further interlocutor—“The Lord Ordinary, in respect the pursuer has failed to pay to the defenders the expenses mentioned in the interlocutor of 22nd June last, and on the motion of the defenders, assoilzies them from the conclusions of the summons and decerns: Finds the defenders entitled to expenses incurred by them in the Outer House: Allows an account to be given in, and remits the same to the Auditor to tax and report.”

The pursuer reclaimed, and argued that he was entitled to withdraw his minute of abandonment on payment of such expenses as had been occasioned by lodging and withdrawing the minute, or had thereby been rendered unavailable in future stages of the cause.

Argued for respondents—The Lord Ordinary had a discretion in this matter and had rightly exercised it. The pursuer, as stated by the Lord Ordinary, had received great and unusual indulgence, and in these circumstances the Court would not interfere with what his Lordship had done.

At advising—