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Scottish Court of Session Decisions >>
Mrs Janet Young, and her Husband, v Mrs Janet Sinclair, and Others. [1796] Mor 10053 (21 May 1796)
URL: http://www.bailii.org/scot/cases/ScotCS/1796/Mor2410053-023.html Cite as:
[1796] Mor 10053
Mrs Janet Young, and her Husband, v. Mrs Janet Sinclair, and Others
Date: 21 May 1796 Case No. No 23.
A decree in foro, “in terms of the libel,” upon a bond containing a penalty, does not include expenses of process.
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Captain Allan granted Mrs Janet Young an heritable bond of annuity for a certain sum, ‘with a fifth part more of liquidate expenses in case of failie.’ After his death, a doubt having arisen among his representatives which of them should be ultimately liable in payment of it; Mrs Young brought an action against one class of them, concluding for the arrears due to her, and for punctual payment of the annuity in time to come, “and one-fifth part more, being the liquidate penalty and expenses, or stated damages arising from the failure in the regular payment said annuity, and costs and charges incurred in enforcing payment thereof.”
The Lord Ordinary, after hearing parties, “decerned against the defenders in terms of the libel; but upon payment of the annuities, ordained the pursuers, upon the defenders’ expenses, to grand an assignation in the defenders’ favour.” A decree, in these terms, was afterwards extracted.
Mrs Young having claimed expenses of process under this decree Mrs Sinclair and the other defenders rasied a suspension, in which they contended, that where a Judge, after hearing parties, pronounces a judgment which is silent with regard to expenses of process, none are understood to be given; l. 3. God, De fruct. et lit. imp.: That where a party extracts a decree, without craving an express judgment on that point, the incontrovertible presumption is, that he was convinced, if he had asked expenses when the Judge was master of the case, they would have been refused; and that this held although the decree was in terms of a libel concluding for a penalty; 23d December 1757, Young against Allan, No 19. p. 10047.; 27th November 1761, Gordon against Maitland, No 20. p. 10050.
Answered; Whatever may be the case when an action is brought for payment of a debt not secured by a penalty, and the summons contains a random conclusion for expenses, where the document of debt contains a penalty which is concluded for in the summons, a decree, in terms of the libel, must include expenses of process. In other cases they are given because there has been some fault on the part of the defender; but when a conventional penalty is sustained to the extent now claimed, the ground of judgment is, that a party cannot, from considerations of equity, be deprived of the full penalty, which, at strict law, is due to him, without at least being indemnified for the expense incurred by him in making his debt effectual; 4th January 1740, Couper, No 16. p. 10044; 19th June 1788, Allardes against Morison, No 22. p. 10052.
The Lord Ordinary on the bills reported the cause on memorials.
Observed on the Bench; When a decree is pronounced in terms of the libel, in absence of the defenders, the actual expenses of process are included; but they are not included where the decree is in foro, unless they are expressly given.
The Lords unanimously remitted to the Lord Ordinary to pass the bill, quoad the charge for expenses of the former process.
Lord Ordinary, Polkemmet.For the charger, Montgomery.Alt. Tod.
Fac. Col. No 218. p. 513.
