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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Lyell v Cooper [1834] CA 13_94b (27 November 1834)
URL: http://www.bailii.org/scot/cases/ScotCS/1834/013SS0094b.html
Cite as: [1834] CA 13_94b
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SCOTTISH_Shaw_Court_of_Session
Page: 94↓
v.
Subject_Expenses.—
Circumstances in which, although a pursuer was found entitled to damages, which, under a judicial reference, were assessed at £65, he was found not entitled to his expenses, in respect that he had occasioned unnecessary and expensive litigation, by originally mistaking his proper remedy.
Sequel of the case reported ante, XI. 96. The Court, on 27th November, 1832, found the pursuer “entitled to be indemnified of the loss which he has sustained by not receiving possession of twenty acres of one-year-old grass at Whitsunday 1827, there not being two-year-old grass upon the farm,” and remitted to the Lord Ordinary to proceed accordingly. A judicial reference was entered into by the parties, for the purpose of fixing the amount of damages, and the referee awarded £65. The Lord Ordinary interponed his authority, but “found no expenses due to either party.” *
Both parties reclaimed, and craved expenses. The Court refused both notes, and adhered to the Lord Ordinary's interlocutor.
Solicitors: G. Deuchar— J. Imrie.—Agents.
_________________ Footnote _________________
* “ Note.—There has been a great deal of unnecessary and expensive litigation in this case, arising from the circumstance that the pursuer mistook his remedy. If at the first he had brought an action of damages against the tenant for contravention of the lease, he must at once have had a judgment in his favour. Instead of doing so, he brought an action of removing, which raised very difficult questions, and in all of which, by the final judgment of the Court, he has now been found to be in the wrong. His action of damages was not brought, at least did not come, into this Court, until after the removing was carried into the Inner House; and it was with difficulty that the summons was sustained, because it mixed up a conclusion for violent profits on account of the defender retaining possession, which was untenable, with a conclusion for damages on account of contravention, the proper ground of the action. In these circumstances the Lord Ordinary thinks that justice is done to both parties by finding no expenses due to either.