Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by ALEXANDER TAIT, CLERK OF SESSION, one of the reporters for the faculty.
Subject_2 EXPENSES.

Harrison
v.
Wilson

Date: 14 July 1774

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Harrison, in an action before the Sheriff of Dumfries, obtained decreet against Wilson. Of this decreet, Wilson presented a bill of suspension, which at last was refused; but, in obtaining this refusal, Harrison was put to an expense of L. 7: 17: 6.

For this sum, he brought a process against Wilson before the Sheriff of Dumfries, in which the Sheriff pronounced this interlocutor, (4th March 1773):—

“Finds the libel relevant, and that the pursuer has a just title to insist for repetition of the expenses libelled; as, otherways, a rich litigious debtor might expose a poor creditor to expenses exceeding the amount of his just debt.”

The defence pleaded for Wilson was, that, as the Court of Session had decreed no expenses to Harrison, it was not competent for him to ask them in a subsidiary action before the Sheriff. But this plea was absurd. The Court of Session, in passing or refusing a bill of suspension, by their forms, are precluded from giving expenses; and, therefore, their not giving them could afford no defence in the present action before the Sheriff. For although it is a general rule that one cannot ask expenses by a subsidiary action, yet this only holds in cases where the Judge has it in his power to give expenses, but gives them not, either because they are not sought, or that he thinks them not to be due. But where he is precluded from giving them, merely by form, it is competent to ask them by a subsidiary action.

And therefore, in a suspension of this decreet, the Lords laid no weight upon the reason of suspension: they thought the Sheriff’s interlocutor well founded, (14th July 1774.) But the cause went off upon another ground, viz. the import of a discharge by Harrison to Wilson of the original decreet, and all following, or competent to follow thereon; under which, it was alleged by Wilson, that all claim for expenses was totally given up and discharged.