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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ligertwood and Daniel, Petitioners [1874] ScotLR 11_654_1 (8 July 1874) URL: http://www.bailii.org/scot/cases/ScotCS/1874/11SLR0654_1.html Cite as: [1874] SLR 11_654_1, [1874] ScotLR 11_654_1 |
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Page: 654↓
(Ante, vol. v. 329; vol. vii. 527; vol. ix. 20; vol. xi 491; 6 Macph. 1112; 8 Macph., H.L., 77; 11 Macph. 960.)
Circumstances in which the expenses of a petition for applying the judgment of the House of Lords were given to the petitioners.
This was a petition at the instance of John Ligertwood, Sheriff-clerk of Aberdeenshire, and William Daniel, Sheriff-clerk Depute,—to apply the judgment of the House of Lords; to recal the interlocutor of the Second Division of date 28th October 1871, reversed by the House of Lords; “to sustain the defences and assoilzie the petitioners from the whole conclusions of the libel, and decern: Further, to find the petitioners entitled to their expenses incurred in the Court of Session, and the expenses of this application and procedure therein,” &c.
The House on 24th April 1874 ordered “that the defenders (respondents in the original appeal) be assoilzied from the conclusions of the summons in the action in which the said interlocutor was
Page: 655↓
pronounced, with the expenses incurred by them in the Court of Session.” Counsel for Messrs Ligertwood and Daniel now asked for expenses, together with the expenses of this application.
Counsel for Mr Watt appeared, and stated that he desired to draw the attention of the Court to two points. (1) That the practice in such cases was not to allow the expenses of an application such as the present. (2) That in the first of the two appeals ( see previous reports) taken to the House of Lords, Mr Watt had been successful, and accordingly this did not fall under the finding in the judgment sought to be applied. No expenses were given in the Court of Session on the interlocutor reviewed under the first appeal.
On the second point—[ Lord Justice-Clerk—That is a matter which will properly come up hereafter, and can be discussed before the Auditor.]
On the first point, it was argued—This is an application which has been already made and refused, as reported in the case of Dunnet, where the Lord President observed that the expenses of the petition for applying the judgment of the House of Lords were never granted to the petitioner. It was necessary for him to apply; and where no opposition was offered, he must himself bear the expense of that step. The prayer of the petition in that case quoad ultra was granted.
Authority— Dunnet, March 8, 1839, 1 D. 689.
Lord Justice-Clerk—In the case of Dunnet it may be observed there was no opposition made to the application. Here, if there is not exactly opposition, there is at least criticism. I see no reason why, if there is a necessary expense caused by the unsuccessful party, he should not be found liable for it.
The Court granted the prayer of the petition.
Counsel for Petitioners— Robertson. Agents— Tods, Murray, & Jamieson, W.S.
Counsel for Mr Watt— Rhind. Agent— W. Officer, S.S.C.
