Wallace v Henderson
| Jurisdiction | Scotland |
| Judgment Date | 22 December 1876 |
| Date | 22 December 1876 |
| Docket Number | No. 47. |
| Court | Court of Session |
Ld. Curriehill.
Process—Expenses—Condition precedent.—
Process—Expenses—Extract Decree—Interest.—
Where the pursuer in an action concluded both for damages and for count and reckoning, and the Inner-House, upon a report on issues by the Lord Ordinary, dismissed the conclusion for damages, with expenses—held (by Lord Curriehill) in conformity with Struthers v. Dykes, 8 D. 815, that the payment of expenses to the defender was a condition precedent to any subsequent 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 Wallace raised an action concluding for £2000 in name of damages for breach of agreement against James Henderson, Esquire, of Bilbster, in Caithness. He also concluded for count and reckoning as to the rents of certain subjects belonging to him with which the defender had intromitted.
On 11th January 1867 the Lord Ordinary (Kinloch) reported the case on issues to the First Division, and of that date the Court pronounced this interlocutor:—‘Find that there are not on record averments relevant or sufficient to warrant the issues proposed by the pursuer: Remit to the Lord Ordinary to dismiss the action in so far as regards the first conclusion for £2000, and to proceed with the other conclusions of the action: Find the pursuer liable to the defender in expenses since the date of the closing of the record, and remit,’ &c.2
Mr Henderson lodged his account, had it taxed and approved of, and extracted and charged on the decree. Wallace did not pay the expenses, and the action fell asleep.
On 12th October 1874 Wallace, with the concurrence of his wife, raised
another action of count and reckoning with regard to the rents of the same subjects against Mr Henderson.
The Lord Ordinary (Young), on 4th March 1875, sustained the defender's plea of lis alibi pendens, in respect of the former action being still in Court, and dismissed the action, with expenses.
The First Division, on advising a reclaiming note on 20th July 1875,1 recalled the Lord Ordinary's interlocutor, and sustained the action as a good action with regard to the rents from and after the date of the signeting of the summons in the first action, with £5, 5s. of expenses.
This second action was...
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