Scottish Court of Session Decisions

The Personal Diligence Act 1838 (1 and 2 Vict. cap. 114), section 20, enacts—“And be it enacted that …. it shall be competent to the Lord Ordinary in the Court of Session before whom any summons containing warrant of arrestment shall be enrolled as judge therein, or before whom any action on the dependence whereof letters of arrestment have been executed has been or shall be enrolled as judge therein, and to the Lord Ordinary on the Bills in time of vacation, on the application of the debtor or defender by petition duly intimated to the creditor or pursuer, to which answers may be ordered, to recal or to restrict such arrestment, on caution or without caution, and to dispose of the question of expenses, as shall appear just. …”

Robert Muir & Company, Ltd., in an action against the United Collieries, used arrestments on the dependence of the summons.

Page: 570↓

The defenders, before defences were lodged, by ordinary motion, and without presenting a petition under the Personal Diligence Act 1838, section 20, moved the Lord Ordinary for recal. The motion was opposed by the pursuers on the grounds firstly, that it was incompetent, secondly, that it was unwarranted on the merits, and the Lord Ordinary refused the motion on the former ground. The pursuers were ultimately successful in the action and were found entitled to expenses.

In their account they included a charge of £6, 6s. 10d. for their successful opposition of the motion for recal. This charge the Auditor disallowed in toto, and the pursuers objected to the disallowance in a note of objections to his report.

Argued for the pursuers—The Auditor had disallowed the charge in question on the ground that proceedings for the recal of arrestments formed of necessity a separate and independent process, and that accordingly they must be separately dealt with and could not form a charge in the principal action. That was probably true where there had been a separate petition for recal. In the present case, however, there had been no separate petition—what had happened merely was this that the pursuers had been successful in an incidental motion in the main process, for which they must get their expenses in the ordinary way. The Lord Ordinary had written no interlocutor and the pursuers accordingly had had no opportunity of having the expenses specially dealt with or specially reserved.

Argued for the defenders—Formerly arrestments could only be recalled by petition to the Inner House. The Personal Diligence Act 1838, section 20, had made a petition to Lord Ordinary competent, and had empowered him to dispose of the question of expenses. Such a petition was clearly a separate process, the expenses of which must be separately dealt with. It was true that an ordinary motion had by custom been allowed to take the place of the petition, but the motion was merely equivalent to the petition and was just as much a separate process as the petition. If expenses were to be recovered, they must be awarded, or at anyrate reserved, at the time.

The Court sustained the objection and allowed three guineas as the expenses.