Scottish Court of Session Decisions

Louis Fine, 204 Gloucester Road, Bristol, having raised an action in the English Courts against Mrs Mary Selina Eyre, wife of Edward Eyre, Wotton—under—Edge, Gloucestershire, obtained a judgment against her, on 6th June 1907, for a debt of £158, 15s. 6d., with £8, 10s. of costs. This judgment was registered in the Books of Council and Session at Edinburgh on 24th June 1907, in terms of the Judgments Extension Act 1868 (31 and 32 Vict. cap. 54).

Fine thereafter used arrestments on 1st July 1907, in the hands of the Edinburgh Life Assurance Company, by which he sought to attach £43, 15s., the amount due on that date for the preceding quarter of an annuity of £175 payable to Mrs Eyre. On 4th July 1907 he brought the present action of furthcoming against the Assurance Company, as arrestees, and Mrs Eyre as principal debtor. [The dispute in the action was whether the annuity could be made available for payment of the debt.]

The action was dismissed as irrelevant in the Outer House, because there was no averment of what the law of England was upon which the decision of the question at issue depended. The pursuer was allowed to amend his record in the Inner House, but was found liable, on 15th December 1908, in expenses since the closing of the record. Thereafter the defender's agent moved the Lord Ordinary that decree for

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the taxed amount of the said expenses, amounting to £43, 16s. 1d,, should be allowed to go out in his name as agentdisburser.

On 13th January 1909 the Lord Ordinary ( Mackenzie) granted the motion.

Opinion.—… [ After narrating the facts ut supra]—A motion is now made that decree for these expenses shall go out in the name of the agent-disburser. This is resisted by the pursuer, who says (1) that he has a decree for £8, 10s. in an action which is pars ejusdem negotii; that he is entitled to set this amount off against the expenses for which he was held liable by the interlocutor of 15th December 1908; that therefore decree should not pass in the agent-disburser's name to any extent; and (2) that he is entitled to set off his debt of £158, 15s. 6d. against the expenses, and therefore the agent-disburser is barred from taking decree in his own name.

It is settled that compensation may be pleaded when cross awards of expenses have been made in the same action, but not between awards of expenses in different actions, as the right of the agent-disburser cannot be cut down by an extrinsic claim— Gordon v. Davidson, 1865, 3 Macph. 938; M'Gillivray v. Mackintosh, 1890, 19 R. 103. This principle was extended so as to apply when the two sets of expenses arose out of the same matter, though in different actions— Lochgelly Iron and Coal Company v. Sinclair, 1907 S.C. 442; Oliver v. Wilkie, 1901, 4 F. 362. The principle was applied in different circumstances in Grieve's Trustees v. Grieve, 1907 S.C. 963. In that case trustees had paid a claimant, in a multiplepoinding, £500 to account, under a judgment of the Court of Session. This judgment was reversed in the House of Lords. All the parties were awarded their expenses out of the estate. The agent of the claimant was held not entitled to decree for expenses in his name as agent-disburser, as this would deprive the trustees of their right to claim retention of the expenses against the £500.

In Paolo v. Parias, 1897, 24 R. 1030, however, when the decree for expenses in the first action had been granted and extracted, before the appeal in the second case came into Court, it was held that the agent—disburser in the appeal was entitled to decree for expenses in his own name. The Lord President pointed out that the decree in the first action had passed into the region of a judgment debt, historically arising out of a dispute on the same subject-matter, but not out of a living proceeding.

Here both the sums of £158, 15s. 6d. and £8, 10s. have passed into the region of judgment debts. Upon this ground it appears to me the motion by the agent-disburser cannot be refused.

Further, I do not think the claim founded on the English judgment can be regarded as other than extrinsic. The English proceedings were for the purpose of constituting the debt.

The present litigation, for the purpose of recovering funds of the debtor, seems to me not pars ejusdem negotii in the sense of the cases, but a separate action.

“I am of opinion that the motion should be granted.”

The pursuer reclaimed, and argued—Decree for expenses should not have been granted in name of the agent-disburser. The present action was a diligence to render the English decree effectual. The two processes were partes ejusdem negotii, and the pursuer was entitled to set off the sums for which he had obtained decree in England against the expenses for which he had been found liable here. His right of compensation ought not to be defeated by the defender's agent taking decree as agent—disburser— Gordon v. Davidson, June 13, 1865, 3 Macph. 938; Macgillvray v. Mackintosh, November 14, 1891, 19 R. 103, 29 S.L.R. 103; Lochgelly Iron and Coal Company, Limited v. Sinclair, January 22, 1907, 1907 S.C. 442, 44 S.L.R. 364. The case of Paolo v. Parias, July 3, 1897, 24 R. 1030, 34 S.L.R. 780, was distinguishable.

Counsel for the respondent were not called upon.