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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Forlong v Taylor's Executors [1838] CS 16_1168 (19 June 1838)
URL: http://www.bailii.org/scot/cases/ScotCS/1838/016SS1168.html
Cite as: [1838] CS 16_1168
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SCOTTISH_Court_of_Session_Shaw
Page: 1168↓
v.
D. F. Hope.
Ivory.
Subject_Expenses—Appeal—Jurisdiction.—
Where a judgment of the House of Lords exhausted the merits of a cause, and remitted it back to the Court of Session “to do therein as shall be just and consistent with this judgment,” there being no direction as to expenses,—Held, in conformity with Stewart v. Scot, March 11, 1836, that it was incompetent for the Court of Session to dispose of the expenses prior to appeal, except in so far as a finding of expenses was involved in the application of the judgment.
Facts:
Sequel of case reported ante, XV. 126. The pursuers in this case having presented an appeal from the judgment of the Court of Session, November 24, 1836, and the defenders having put in a cross-appeal, the House of Lords ordered and adjudged “that the said interlocutor of the 24th of November, 1836, so far as complained of in the said original appeal, be, and the same is hereby reversed. And it is farther ordained and adjudged, that the said cross-appeal be, and is hereby dismissed this House: And that the said interlocutor of the Lord Ordinary of the 11th of July, 1835, therein complained of, be, and the same is hereby affirmed. And it is farther ordered, that the said cause be remitted back to the Court of Session in Scotland, to do therein as shall be just and consistent with this judgment.” By this judgment the whole cause was exhausted, and nothing farther remained to be done upon the merits.
Thereafter the pursuers presented a petition to have the judgment of the House of Lords applied, and to be found entitled to the expenses incurred in this Court.
The Court applied the judgment in terms of the petition. In regard to the claim of expenses, there having been no special remit as to the question of expenses, they held themselves bound by the decision in the case of Stewart v. Scott, 1 March 11, 1836, and accordingly “of new found expenses due up to the date of the Lord Ordinary's interlocutor affirmed by the judgment of the House of Lords, but found no other expenses due.”
Solicitors: Campbell and Macdowall, W.S.— Gibson-Craigs, Wardlaw, and Dalziel, W.S.—Agents.
_________________ Footnote _________________
1 Ante, XIV. 692.