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This was an action of reduction of a decree of removing, and proceedings following thereon, and also concluding for damages. Preliminary defences were stated, the third being, that ‘the pursuer, resorting to another action, he must first pay the expenses of the former action, for which decree was given against him.’ The Lord Ordinary (July 11. 1839) issued the following interlocutor and note:
Note .—‘Although it may not be of importance to the present defender what arrangement is made as to such a claim as the costs of a preceding action, the Lord Ordinary considers the point now ruled to be of the utmost importance in the every-day practice of the Court.
It is possible that the pursuer, by not availing himself of the statutory remedy, may have exposed himself to very serious pleas on the merits, such as res judicata, or competent and omitted ; but as these are pleas on the merits, the Lord Ordinary thinks, they cannot be entered upon till the preliminary objections to the action are obviated.
Pyper , for him, contended , that the analogies adopted by the Lord Ordinary were fallacious. The first was founded on the provision of the judicature act, as to the abandonment of his action by a pursuer; but that was a privilege given to him on a certain condition, seeing that previously he could not abandon an action once raised, but must have submitted to a decision in it on the merits. Then as to the other analogy, there was here an extracted decree, which could not be affected by proceedings similar to those which might be taken in a pending suit.
Lord Justice-Clerk .—I am not so clear that we can adopt the view of the Lord Ordinary. It is a very delicate thing to draw any analogy from sect. 25. of the judicature act to this proceeding. Mr Campbell may be entitled to call on this pursuer to find caution for the expenses of the present process, but I have great difficulty in going on the analogy of that section to make him pay the expenses of the former process before being allowed to proceed with his new action.
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