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SCOTTISH_HoL_JURY_COURT

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(1715) Robertson 147

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 36.

William Habkin, Belt-maker in Edinburgh, Appellant

v.

Roger Hog, Merchant in Edinburgh, Respondent

19th August 1715.

Subject_Annual Rent, Costs and Expences.—

Two tradesmen having contracted to clothe a regiment, and to divide equally under a Denalty the sums to be received by virtue of an assignment of off-reckonings delivered to each of them : one of them afterwards receives a new assignment of off-reckonings, and a sum of money from the Treasury, and refusing to pay a balance due to the other, the Court ordained the person receiving the money, which, they found, fell under the first assignment, and their mutual contrail, to pay the balance due to the other, which however was restricted to a smaller sum than was claimed : but the Court having refused him damage and interest; upon appeal the judgment is reversed, and the respondent is ordered to pay to the appellant the principal sum found due to him, with the interest thereof, from the time the respondent received the remainder of the money; and the Court is ordered to cause the costs and expences of the appellant in the action to be taxed and ascertained and forthwith paid to him by the respondent.

No Specific sum being here awarded, proceedings afterwards upon the complaint of the appellant, relative to the taxing of his expences by the Court of Session, and resolutions and orders of committees and of the House there on a sum allowed to the complainant for his subsequent expences, in taxing cofts.

In January 1705, an agreement for cloathing a regiment of guards in Scotland was entered into between Lieutenant General Ramsay, the Colonel of the regiment, of the one part,

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and the appellant and respondent of the other part: the appellant and respondent bound and obliged themselves, jointly and Severally, their heirs, &c. before the time therein Specified, to deliver over to the Said General or his order, cloathing for his Said regiment: In consideration whereof, on the other part General Ramsay bound and obliged himself to execute an assignment of the off-reckonings of the Said regiment unto the appellant and respondent until Such time as out of the Said fund they should be fully paid and Satisfied the Sum of 3151 l. 10 s. sterling as the consideration money for their cloathing the Said regiment.

In February thereafter the appellant and respondent entered into another contract between themselves, reciting, That whereas they were bound jointly and Severally to cloath the Said regiment, and that it was just and reasonable to relieve each other therein, therefore the appellant on the one part, obliged himself to cloath the first battalion of the regiment, and the respondent obliged himself to cloath the Second battalion, without any regard to the costs and charges either might be at in furnishing his respective battalion; and they expressly declared, that the money arising out of the fund to be assigned to them should be equally divided between them : And each of them was respectively to perform the contract to the other under the penalty of 500 l. to be paid by the party failing to the party performing the fame.

The appellant and respondent furnished their respective shares of Said cloathing, but there being still Some things wanting which were not contracted for, the respondent furnished Some of these upon his own Separate account, to the value of 106 l. 1 s. and the appellant furnished the remainder to the value of 27 l. 8 s. 4 d. sterling.

On the 29th of October 1705, the Earl of Dalhousie, who then had the command of the Said regiment, granted two assignments of the said off-reckonings or cloathing fund, one whereof was to the appellant for the sum of 1603 l. 13 s. 4 d. being his just share of the total sum of 3285 l. 9 s. 4 d. the other to the respondent for 1681 l. 16 s.for his share and proportion. By each of these assignments the appellant and respondent were expressly simul et semel intitled to the payment of the cloathing money, from and after Whitsunday 1705, until such time as their respective sums should be fully and completely satisfied. Pursuant to these assignments Several orders or precepts were issued from the then Commissioners of the Treasury to the Receivers General, in consequence of which the appellant and respondent received to the amount of 2956 l. 5 s. 6d. sterling, which was equally divided.

The respondent afterwards entered into a Separate agreement for cloathing one half of the said regiment from 1st of october 1706 to ill of February 1707, and was to have 631 l. allowed him for the fame, for which the Earl of Dalhousie gave him a further assignment of the off-reckonings. There being also a balance still due to him upon the former account, he, on the 30th of April 1708, procured an order from the Commissioners of the

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Treasury upon the paymasters of the army for 721 l. of which also he received payment.

A balance on the original account being still due to the appellant, when the respondent received the last-mentioned sum of 721 l. the appellant made application to him for payment of that balance, contending that the off-reckonings or cloathing money of the regiment were appropriated for the payment of their respective assignments, and not otherwise applicable till they were paid; and that this order for payment to the respondent commenced before the appellant's assignment was Satisfied, and the respondent's accepting of Such order was a breach of the articles of agreement. Upon the respondent's refusal, the appellant gave him a charge of horning upon the articles of agreement, for the Said penalty of 500 l. The respondent raised a bill of suspension before the Court of Session; and after Sundry preliminary proceedings, the foresaid charge and contract were turned into a libel, and the appellant insisted for payment of the balance due to him with interest, Since the money had been received by the respondent on his last order.

After Sundry further proceedings in this action, the court, on the 25th of June 1713, “found that the Sums paid to the respondent by virtue of the order for 721 l. sterling, being the cloathing-money from the 1st of October 1706 to the 1st of February 1707, fell under the assignment formerly made to the appellant and respondent, and under their mutual contract, whereby the money was to be equally divided between them under the penalty of 500 l. and ordained the respondent to pay to the appellant a proportional part of the sums received by the respondent in So far as the former assignment to the appellant remained unsatisfied.” It was afterwards remitted to the Lord Ordinary to fettle the accounts between the parties, and the appellant claimed a Sum of 216 l. as due from the respondent; the respondent give in an account also, and the Lord Ordinary at first found a balance of 192 l. 7 s. 2 d. due to the appellant; but this sum was afterwards restricted (by the respondent's making oath to Sundry articles of deduction, as the appellant states) to the sum of 166 l 19 s. 1 d. For this latter sum decree was given by the court, in favour of the appellant, upon the 27th of February 1713; and this decree was acquiesced in by all the parties.

The appellant afterwards presented a petition to the court, praying to have the interest of the sum decreed for allowed to him from the time the respondent received it from the government, together with the expences of the action; or otherwise that they would order the respondent to pay the aforesaid penalty incurred through his breach of the Said agreement, in lieu and Satisfaction of the Said principal sum, interest and expences. The court, by Several interlocutors, the last of them upon the 24th of February 1714, “refused the desire of the Said petition.”

Entered, 3 June 1715.

The appeal is brought from “Several interlocutors of the Lords of Session, and in particular a decree made by the said Lords the 24th of February 1714.”

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Heads of the Appellant's Argument.

The respondent committed a manifest breach of the said contracts and of the faith and trust of copartnership; for without any power or authority from the appellant, or giving any notice to him, he in a clandestine manner made application to the treasury, and obtained from them an order or precept for the whole remainder of the money due upon both the said assignments. When the respondent, too, appeared to the action in the court below, he positively denied that he had received any of the appellant's money, which put the appellant to great expence in producing the books of the treasury, the order of the Lords Commissioners to pay the Said 721 l. and the respondent's receipt for the money. The appellant has been put to great trouble and charges for four years successively in this business; and he claims to have awarded to him his said reduced principal sum and the interest thereof, together with his expences in the court below, to be ascertained by the appellant's own oath, in consideration that the said principal sum was reduced in a great measure by the oath of the respondent; or otherwise the penalty contained in the contract in lieu and satisfaction thereof.

Heads of the Respondent's Argument.

Though the court did decree the respondent to allow the benefit of this payment to the appellant, as to the balance due to him of the former assignment, yet that was because these prior assignments were preferable upon the whole fund of cloathing-money, nor did the court find any mala fides in the respondent. There can be no manner of reason for expences against the respondent, especially since the respondent never declined accounting with the appellant; on the contrary, he, by form of instrument, required him to settle accounts, but the appellant declined it. Nor was any part of the expences in this action occasioned by the respondent, but by the appellant's irregular proceedings in suing out execution upon the agreement, without condescending upon any particular breach of it, or liquidating any sum due to him. That occasioned the bill of suspension, and the greatest part of the expences; and in all the points relative to this proceeding of the appellant's, wherein the respondent and he were adversaries, the court gave it against the appellant by suspending his charge, and first turning it and afterwards the contract into a libel, whereby the court sustained that contract as a foundation for an account, which was never opposed by the respondent. Had the appellant given in a fair and just account the subsequent expences would have been but small, but the appellant insisting for 216 l. as the balance due to him, and denying several articles the respondent charged him with, this obliged the respondent to be at great expence in recovering several vouchers of the account from the Commissioners and others, and by these deductions the account was balanced 166 l. 19 s. 1 d. which the respondent submitted to. The costs then were occasioned by the appellant's irregular

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proceeding, and since the respondent submitted to account and pay the balance; and since the appellant's demand was restricted from 216 l. to 166 l. 19 s. 1 d. there is no reason to load the respondent with expences. On the contrary, the appellant ought to pay expences; for it is an undoubted principle in the law of Scotland that a pursuer claiming more than is really due to him, and occasioning trouble and expence to the defender in defending that claim, and restricting it to a just balance, can never pretend to expences; but on the contrary, ought to pay them. The Court of Session, therefore, refused the appellant's demand at first reading his petition, and without obliging the respondent to give in an answer. Nor can the appellant pretend to any part of the penalty, since the court has not found the respondent guilty of any breach of the articles: And as to interest there is no reason for that, since in this case it is neither due ex pacto nor ex lege, which are the only cases where interest is allowed.

Judgment, 19 Aug. 1715.

After hearing counsel, It is ordered and adjudged that the several interlocutors and decree complained of in the appeal whereby the Lords of Session did refuse the appellant's demands by his bill exhibited to them as to interest and costs be reversed: And it is further ordered that the respondent do forthwith pay, or cause to be paid to the appellant, the principal sum found due to him, with the interest thereof from the time the respondent Hog received the remainder of the money due on the two first assignments made of the off reckonings in question. And further, that the said Lords of Session do cause the costs and expences of the said appellant in the said suit to be taxed and, ascertained, and that the same when so taxed be forthwith paid to the appellant by the said respondent.

Counsel: For, Appellant,— Rob. Raymond. John Cumyng.
For Respondent, J. Jekyll. Will. Hamilton.

Proceedings relative to these costs, Journal, 1717–18. Feb. 27.

A petition of William Habkin was presented to the House and read, reciting the judgment on hearing his appeal, whereby it was remitted to the Lords of Session, to tax the petitioner his costs of suit, and complaining, “that the said order is eluded,” and praying, “that the same may be made effectual for the petitioner's relief, touching the costs both here and in Scotland, by explaining the said order in such manner as to the House shall seem just.” This petition was referred to a committee to report thereon.

March 8.

The Earl of Clarendon reported from the said committee,

“That their lordships have accordingly considered the said petition, and have examined into the facts therein alleged, and find that on hearing the petitioner's appeal, the 19th day of August 1715, the House did reverse the interlocutors,” (here the judgment is recited): “the committee likewise inform the House, that the petitioner produced before them his bill of costs, both here and in Scotland, amounting to 408 l. sterling, which he exhibited before the said Lords of Session on the 3d of February 1716; but they found that by the judgment of this House the expences craved in the process depending

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before the Lords of Session were only remitted to be determined by them, which were refused; and against which the petitioner appealed; and therefore remitted to the Lord Grange to modify the said account, or report as he should find just; whose lordship, on the 29th of November 1717, having considered the account of expences given in by the said William Habkin of the suit before the Lords of Session, amounting to the Sum of 951 l. 8 s. 6 d. Scots, modified the same to the sum of 760 l. Scots; and decerned that is decreed therefore: but upon a representation made by Roger Hog, merchant in Edinburgh, the respondent to the petitioner's said appeal, the 1st of December following, the petitioner was, on the 5th of the same month, directed to fee and answer; and in the mean time the extracting the said decree was stopped: and some short time after the said account, with the instructions thereof, and the judgment of this House, were ordered to be put into the clerk's hands; and it did not appear to the committee, that any further proceedings have been had thereupon. And their lordships, upon consideration of the whole matter, are of opinion, that the said Lords of Session have rightly proceeded to tax only the costs of suit before them, and not the costs of the petitioner's appeal to this House; and that no final order should be made by this House upon the petitioner's complaint, touching the said costs until it be seen what costs the Lords of Session will allow: but in respect of the great delay which it appears to the committee has been in the taxing the petitioner's costs ordered by this House, the committee are likewise of opinion, the Lords of Session should tax and allow the petitioner the costs he has or shall be put to in the taxation of his said costs.”

1719–20 March 10.

Which report being read by the clerk, was agreed to by the House.

A petition of Mr. Habkin was presented to the House and read, complaining “that the Lords of Session in Scotland have not taxed his costs, pursuant to former orders of this House; and praying such final order may be made, touching his costs, both here and in Scotland as shall be thought proper for the petitioner's relief.” Which was referred to a committee to report.

1710 May 17.

The Earl of Clarendon reported from the said committee, “That their lordships having caused notice to be given of this complaint to one Roger Hog, merchant in Edinburgh, who was the respondent to the petitioner's appeal, and being attended as well by an agent on behalf of the said Hog, as by the petitioner himself and his agent; their lordships took the said petition into consideration; and find, that this House, on the 19th of August 1715, upon hearing the petitioner's appeal, did in part reverse a decree of the Lords of Session therein complained of; and directed them to cause the costs and expences of the petitioner in the suit between him and the said Hog, to be taxed and ascertained, and that the same, when so taxed, should be forthwith paid to the petitioner.

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That the petitioner having exhibited the said order, as also his account of expences, to the said Lords of Session, the same was by them referred to the Lord Grange, to be taxed accordingly; and the said account was by him modified to the sum of 63 l. sterling or thereabouts.

That the committee were informed, the said account or bill of costs was by the Lord Grange so taxed or modified ex parte, and a decree made thereon; but upon the said Hog's representation, in four or five days after, the petitioner was directed to fee and answer; and in the mean time the extracting the said decree was stopped; and some short time afterwards, the said account with the instructions thereof, and the order of this House of the said 19th of August were ordered to be put into the clerk's hands: notwithstanding this proceeding, the petitioner, without complaining to the Court of Session of the taxation of the said Lord Grange, thought fit to take up his account, or bill of costs, and vouchers from the clerk, and to apply to this House by petition, complaining of the said taxation and desiring that the above-mentioned order of your lordships on hearing his appeal might be made effectual for his relief, touching his costs both here and in Scotland: and a committee being appointed to consider of the said petition; their lordships, on the 8th of March 1717, reported it as their opinion, ‘That the Lords of Session had rightly proceeded to tax only the costs of suit before them, and not the costs of the petitioner's appeal to this House; and that no final order should be made upon the petitioner's complaint, until it should be seen what costs the Lords of Session would allow:’ but in respect of the delay in taxing the petitioner's costs, it was likewise their opinion, ‘The Lords of Session should tax and allow him the costs he had or should be put to in the taxation of the said costs:’ And your lordships agreeing with the committee in their said report, the petitioner applied again to the said Lords of Session, pursuant to the directions therein contained: And here the committee think proper to observe, that on the 11th of February 1717, but a few weeks before the above-mentioned report was made, your lordships, upon a petition from one Mrs. Lyon, touching the taxation of her costs in Scotland, did direct the Lords of Session to tax and ascertain her costs and expences article by article. And the committee were informed, ‘That the said Lords of Session conceived it was expected by your lordships that they should observe the like method in the re-taxation of the petitioner's account or bill of costs, as was done in Mrs. Lyon's, and therefore proceeded accordingly. And having fully heard the parties on both sides in relation thereunto, and duly considered the acts of regulation which are authorized by acts of parliament in Scotland, regulating the fees about the Court of Session there, the whole Lords went through the said account or bill, article by article, and taxed the same at 23 l. sterling or there abouts, and allowed for costs of such taxation 8 l. 6 s. 8 d. or

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thereabouts, the reasons of which taxation are particularly expressed in their interlocutor for that purpose;’ which sums so taxed and allowed, the committee were likewise informed, the said Hog did immediately, by a notary, offer payment of to the petitioner, but he refused to accept thereof:

The committee, before they conclude, think proper only further to observe, that your lordships having formerly been of opinion, the Lords of Session had rightly proceeded to tax only the costs of suit before them, and not the costs of the petitioner's appeal; and your said order of the 8th March 1717, directing the Lords of Session to tax and allow the petitioner the costs he had or should be put to in the taxation of his costs, having been complied with in the allowance of the Laid 8 l. 6 s. 8 d. for that purpose as afore-mentioned; that therefore the said Lords of Session have proceeded agreeably to the orders of this House, and have not disregarded the authority of your lordships' last order, as particularly complained of in the petition.

Which report being read by the clerk, was agreed to by the House: And the order and judgment of this House of the 19th of August 1715, on hearing the petitioner's appeal, being read:

“It is ordered by the Lords Spiritual and Temporal in parlialiament assembled, that the said petition be and is hereby dismissed this House.”

1715