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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Porteous v. Caledonian Railway Co. [1891] ScotLR 29_21 (14 March 1891) URL: http://www.bailii.org/scot/cases/ScotCS/1891/29SLR0021.html Cite as: [1891] ScotLR 29_21, [1891] SLR 29_21 |
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A person brought an action of damages for personal injury in the Sheriff Court, which was dismissed as irrelevant, and in which expenses were found due to the defenders. Thereafter, but before the defenders' account of expenses had been taxed, he brought an action against them in the Court of Session founding upon the same circumstances. Plea of lis alibi pendens sustained.
James Porteous brought an action against The Caledonian Railway Company for the sum of £1000 as damages sustained by him through his being injured in his person by his being jammed between a truck and the terminus buffers at the Terminus Quay, Glasgow, by the fault of the defenders. The defenders in their answers stated “that the pursuer on 4th August 1890 raised an action in the Sheriff Court at Glasgow against the defenders in the present action for a sum in name of damages for the accident, which is the cause of action in the present case. The defenders lodged defences to the said action of 4th August 1890, and on 22nd October 1890, Sheriff-Substitute Guthrie, before whom the said action depended, pronounced therein an interlocutor in the following terms—‘ Glasgow, 22nd October 1890.—Having heard parties' procurators, Finds that the pursuer has failed to set forth a revelant case inferring liability against the defenders: Therefore dismisses the petition, and decerns: Finds the defenders entitled to expenses; allows an account thereof to be given in, and remits the same, when lodged, to the Auditor to tax and
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report. W. Guthrie.’ The defenders' account of expenses in said action has not yet been taxed. The said action of 4th August 1890 was in dependence when the present summons was signeted, executed, and called.” The defenders pleaded—“Lis alibi pendens.”
The Lord Ordinary (
“ Opinion—I am of opinion that the plea of lis alibi pendens must be sustained. It is founded on an action to the same effect as the present, raised in the Sheriff Court at Glasgow on 4th August 1890. On 21st October that action was dismissed as irrelevant, with expenses. The defenders have not laid their account before the Auditor.
This action was raised on 29th January 1891, and the record was closed on 24th February. Thereafter the pursuer moved in the Sheriff Court action that the defenders should be ordained to proceed with the taxation of their account, and the defenders resisted that motion. The pursuer made the motion in order to obviate the plea of lis alibi. The defenders do not conceal that they resisted it in order to be able to maintain their plea. The Sheriff-Substitute'on 10th March refused the motion, which in his note he describes as unprecedented.
The pursuer maintained that the plea of lis alibi pendens only applied when the earlier action was in dependence when the plea came up for decision, and he referred to dicta by the Lord President in the case M'Aulay v. Cowe, December 13, 1873, 1 R. 307, which he represented to be to that effect. But I think it was decided in the cases of Aitken v. Dick, July 9, 1863, 1 Macph. 1038, and Kennedy v. M'Dougal, June 12, 1876, 3 R. 813, that the plea applies if the former action was pending when the second action was raised. I think I am bound to follow these decisions and to hold that the dicta of the Lord President in M'Aulay v. Cowe were not intended to conflict with them.
The action in the Sheriff Court was in dependence when this action was brought, and at that time the pursuer had taken no steps to have it brought to a conclusion. It is in dependence still, but the pursuer has done his best to have it brought to an end, and I doubt greatly whether a defender is entitled to hold up his account so as to keep the action in which he has been awarded expenses alive for the purpose of disabling the pursuer from bringing a second action. I am disposed to think that I would be entitled to defeat such an attempt by repelling the plea. But if the plea applies whenever the second action is raised, as I think it does, no such question arises, because although the defenders had certainly delayed to submit their account to the Auditor, the pursuer had taken no step to endeavour to compel them to do so, and he has therefore no equitable ground to urge against the plea receiving its ordinary effect.”
Counsel for the Pursuer— Orr. Agent— W. A. Hyslop, W.S.
Counsel for the Defenders— Deas. Agents— Hope, Mann, & Kirk, W.S.
