Dalmahoy and Wood v Magistrates of Brechin
| Jurisdiction | Scotland |
| Judgment Date | 05 January 1859 |
| Year | 1859 |
| Date | 05 January 1859 |
| Docket Number | No. 39 |
| Court | Court of Session (Inner House - Second Division) |
Ld. Ardmillan. R.
Process—Expenses—Interest—Stat. 1621, cap. 20.—
MESSRS JAMES SPEID and CHARLES WILL, writers in Brechin, the collectors of the assessment imposed on the heritors of the parish of Brechin for the purpose of erecting a manse for the minister of the first charge of the parish, were successful in a process of suspension raised against them in the Court of Session at the instance of the Magistrates and Town-Council of Brechin, and various other persons. On 6th December 1849, Messrs Speid and Will obtained decree for the expenses of process against the suspenders. The extract decree bore, that the Lords ‘decern and ordain the said Suspenders, conjunctly and severally, to make payment to the said chargers and respondents of the sum of L.149, 7s. sterling, being the taxed amount of the expenses of said process found due to the said respondents on the 5th day of February 1848, when said suspension was repelled, together with L.1, 2s. 4d. as the dues of extracting this decree, and the said Lords grant warrant,’ &c. Part of the sum decerned for was paid to Messrs Speid and Will, and they assigned their claim for the balance and interest thereon to 3d May 1855, amounting to L.99, 5s., to Messrs Dalmahoy and Wood, W.S., who raised this action, concluding for the whole sum decerned for, under deduction of the payments to account, with interest from the date of the decree.
It was pleaded in defence;—(1.) The summons was incompetent, irregular, and nimious, in respect there was already an extracted decree against the defenders and others, for the expenses in question, which was assigned to the pursuers, who were in full right thereof, and had executio parata thereon. (2.) Interest not being decerned for, and the defenders having always been ready to pay the principal sum, under deduction of the admitted payments to account, on a proper assignation being granted to them, at their expense, the defenders ought to be assoilzied.
The Lord Ordinary, on 26th November 1857, pronounced this interlocutor:—‘Repels the defences: Finds that the principal sum concluded for, being the balance of a taxed account of expenses, is not denied to be due: Finds that interest, as concluded for, is due on the said balance of the taxed account of expenses: Therefore, decerns against the defenders, conform to the conclusions of the libel; finds the pursuers entitled to...
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Fleeming v Howden
...v. Young, May 31, 1853, 15 D. 702; Cormack v. Tod, June 3, 1845, 7 D. 812; Dalmahoy and Wood v. Magistrates of Brechin, Jan. 5, 1859, 21 D. 210. 2Fenton v. Livingston, Nov. 24, 1859, 22 D. 17; Ewart v. Latta, July 20, 1865, ante, vol. iii. p. ...
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Wallace v Henderson
...procedure under the other conclusion of the action. Held (by Lord, Curriehill) in conformity with Dalmahoy and Cowan v. Mags. of Brechin, 21 D. 210, that interest runs upon an interim decree for expenses when the decree has been extracted and charged upon. On 27th February 1866 Robert Walla......