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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Williams v. Carmichael [1874] ScotLR 11_530 (20 May 1874) URL: http://www.bailii.org/scot/cases/ScotCS/1874/11SLR0530.html Cite as: [1874] SLR 11_530, [1874] ScotLR 11_530 |
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Page: 530↓
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Bill Chamber.
In an action between two parties the defender was assoilzied from the conclusions of the summons. The defender's agent thereafter obtained an extract decree of absolvitor, containing also a decree in his own name, as agent-disburser, forexpensesincurred. The pursuer having declined to pay the expenses unless upon delivery of the extract decree, a charge was given therefor. Against this charge a note of suspension was presented. Held that the suspender was not entitled to delivery of the extract decree on payment of the expenses found due, and note refused.
Observed that the decree of absolvitor was the main thing, but that it might be otherwise in a petitory action for a sum of money to be paid.
This was a note of suspension at the instance of Mrs Williams, sometime proprietrix of Little Earnoch, near Hamilton, against Mr Thomas Carmichael, S.S.C. The complainer prayed for suspension of a charge for the sum of £234, 8s. 11d. of expenses, decerned for against her in an action brought by her against Mr Thomas Smith, farmer, Little Earnoch, from the conclusions of which Mr Smith was assoilzied. The extract decree of absolvitor in this action contained a decree in the name of Mr Carmichael, as agent disburser, for the expenses incurred in the action, and Mrs Williams having declined to pay the expenses unless upon delivery of the extract decree, a charge was given therefor.
The ground upon which the note of suspension proceeded was that the complainer was willing to pay the expenses upon receiving a discharge and delivery of the extract decree; and it was also pleaded that the charger, having no interest to retain the extract decree, was bound to deliver the same to the complainer. The amount of expenses having been consigned, execution was stayed, and answers ordered to be lodged by the 4th of May. In his answers the charger contended that his client Mr Smith was entitled to retain the extract decree as his discharge from the conclusions of the action brought by Mrs Williams, and that she was not entitled to withhold payment of the expenses until the extract was delivered.
On 7th May 1874 the Lord Ordinary on the Bills ( Gifford) pronounced an interlocutor, with note appended, as follows:—“The Lord Ordinary having resumed consideration of the note of suspension, answers, and whole process, Refuses the note of suspension, and decerns; but finds that the whole sums charged for having been consigned by the suspender, the charge is no longer insisted in: Grants warrant in favour of the charger Thomas Carmichael for payment to him of the whole consigned money, and that upon his duly executing a holograph or tested discharge in terms of the form No. 18 of process, and lodging the same in process for behoof of the suspender, and grants authority to the clerk or other custodier of the deposit receipt to deliver up the same for payment, and grants authority to the bank to pay the whole sum consigned to the said Thomas Carmichael, and decerns: Finds the charger, the said Thomas Carmichael, eptitled to expenses, and remits, &c.
Note.—The sole question in dispute in the present case is, Whether the suspender, on payment to the charger of the expenses found due to the charger in the action at the suspender's instance against Thomas Smith, is entitled to delivery of
Page: 531↓
It is quite fixed in law and in practice that a defender who obtains decree of absolvitor with expenses is entitled to an extract of that decree at the expense of the unsuccessful pursuer. This is a matter of every-day practice, and was recognised in the case of Hunter v. Stewart, 18th Nov. 1857, 20 D. 60. Mr Smith, who had been defender in the action at Mrs Williams’ instance, and who succeeded in obtaining decree of absolvitor with expenses, was therefore entitled to an extract of that decree at Mrs Williams’ expense. He obtained that extract accordingly. It is No. 16 of process in the present suspension, and admittedly Mrs Williams, the suspender, must pay therefor. The same extract decree of absolvitor embodies and contains a decree for the expenses, which was allowed to go out and be extracted in name of Mr Thomas Carmichael, who had been Mr Smith's agent, and who had been the disburser of these expenses; and the question is, whether Mr Carmichael, the present respondent, on receiving payment of those expenses, is bound to give up the extract decree of absolvitor which really belongs to his late client Mr Smith, and which merely contains as an accessory or pertinent the decree for expenses. The Lord Ordinary thinks that he is not. The extract decree of absolvitor is really Mr Smith's voucher. It is his discharge for the claim made upon him by Mrs Williams, and the mere circumstance that it also contains the decerniture for expenses does not entitle Mrs Williams to demand or obtain possession thereof. The circumstance that the decree for expenses went out in the name of the agent makes no real difference. The extract decree of absolvitor is still Mr Smith's discharge, only it is his agent and not he who will sign the receipt for expenses. It is the decree for absolvitor that is the main thing, and this might in some cases be an important step in the defender's progress of titles. The same principle would apply to a decree of declarator obtained by a pursuer. A pursuer would not in general be bound to give up such decree merely on payment of the expenses. The expenses in such cases are the mere accessory. It may be otherwise when the decree is in a petitory action for a sum of money which, as well as the expenses, is to be paid. It was suggested that a separate extract should have been got for the expenses. The Lord Ordinary does not think this necessary. It certainly is unusual, and in any view it would have been at the suspender's expense.
Holding the suspender, therefore, to have been wrong in her demand for the delivery of the extract decree of absolvitor, the Lord Ordinary has refused the note of suspension, and expenses must follow.”
This interlocutor not having been reclaimed against has become final.
Counsel for Suspender— Adam. Agents— A. & A. Campbell, W.S.
Counsel for Respondent— M'Kechnie. Agent— Thos. Carmichael, S.S.C.
