Scottish Court of Session Decisions

William Milne, ice merchant, 103 King Street, Glasgow, presented this petition for recal of inhibition used by Messrs E. & J. Birrell, builders, Kinnear Road, Glasgow, and praying the Court “to find the said Messrs E. & J. Birrell liable in the expenses of this application, and of such other expenses as it may be necessary to incur in order to get the incumbrance created by the said inhibition completely removed.”

On 18th March 1902 Messrs Birrell had presented a petition in the Sheriff Court at Glasgow for recovery of a debt due to them by Milne. On 21st March they took out and recorded letters of inhibition against him.

Milne had thereafter paid the debt sued for, and the expenses of the petition, which was accordingly abandoned.

On 1st April 1902 Milne, through his agents, requested Messrs Birrell to discharge the inhibition which they had taken out over his property. Messrs Birrell replied through their agents that they thought his proper course was to present a petition to the Court for recal, but stating that they did not object to discharging the inhibition if Milne paid the expenses.

Milne intimated that he was willing to pay the expenses of the discharge, but Messrs Birrell required that he should also pay the expense incurred in taking out and recording the letters of inhibition.

Milne accordingly presented this petition.

Messrs Birrell lodged answers in which they stated that they had no objection to the prayer of the petition being granted, except in so far as it sought to have them found liable in expenses.

Argued for the petitioner—A creditor, having used inhibition in security of his debt, and having received payment of his debt, was not entitled to demand from his debtor the expense not only of discharging but also of laying on the inhibition as a condition of granting the discharge. The petitioner having been compelled to make the present application by the unreasonable attitude adopted by the respondents, they should be found liable in the whole expenses incurred by the petitioner in freeing himself from the inhibition— Robertson v. Park, Dobson & Company, October 20, 1896, 24 R. 30, 34 S.L.R. 3.

Argued for the respondents—The position of the respondents with regard to the whole expenses in connection with the inhibition was that of successful litigants. They had obtained payment of their debt, and they were not bound to pay the expenses of their unsuccessful debtor in connection with the steps which they had been obliged to take owing to his non-payment— Laing v. Muirhead, January 28, 1868, 6 Macph. 282, 5 S.L.R. 199; Roy v. Turner, March 18, 1891, 18 R. 717, 28 S.L.R. 509.