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Cite as: [1838] CS 16_1210

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SCOTTISH_Court_of_Session_Shaw

Page: 1210↓

016SS1210

South Metropolitan Gas Company of London

v.

Marquis of Lothian.
No. 240.

Court of Session

2d Division

June 23 1838

Jury Cause R., Lord Justice-Clerk.

South Metropolitan Gas Company of London,     Pursuers.— Counsel:
Monteith. Marquis of Lothian,     Defender.— Counsel:
M'Neill. John Williamson,     Defender.— Counsel:
Wood.

Subject_Expenses—Verdict—Witness.— Headnote:

1. In an action where there were two defenders whose cases were separate, and where two issues were sent for trial having reference respectively to each defender, the jury “found for the pursuers on the first issue,” finding nothing as to the second issue; this being substantially a verdict for the defender of the second issue, the Court found him entitled to his expenses. 2. In such action the defender of the second issue held entitled to the expenses of witnesses brought up but not called at the trial, this expense having been incurred in the fair and bona fide preparation of the case for trial, with reference to the pleadings of parties and the issues.

Facts:

In this case, which was tried March 15, 1838, ^* the issues were as follow:—

“Whether the defender, the Marquis of Lothian, by himself, or another acting under his authority, and for his behoof, promised and agreed to furnish to the pursuers a quantity of coal called parrot-coal, for a certain period, from July, 1836, in terms of the letter No. 6 of process, or homologated the said agreement; and whether the said defender wrongfully failed to deliver all or any part of the said coal, in terms of the said agreement, to the loss, injury, and damage of the pursuers?

“Whether the defender, John Williamson, wrongfully held himself out as authorized to act on behalf of the Marquis of Lothian, and promised and agreed to deliver to the pursuers the said coal, in terms of the said letter, and wrongfully failed to deliver, or procure to be delivered, all or any part of the said coal, to the loss, injury, and damage of the pursuers?”

“Damages laid at £55,000.”

The Jury “found for the pursuers on the first issue, £1000,”—finding nothing as to the second issue.

On the motion to apply the verdict, the defender Williamson moved for expenses, as having been successful on the second issue. This was
_________________ Footnote _________________

^* Reported, of the above date, in Macfarlane's Reports of Jury Trials, p. 13.

resisted on the ground that the Jury, in their verdict, had found nothing on the second issue as to any of the parties.

The Court held Williamson entitled to his expenses.

On the motion (this day) to approve of the auditors' report of Williamson's account, it was objected by the pursuers that he had been allowed the expenses of certain witnesses who were brought up, but not called at the trial.

Lord Justice-Clerk.—I think the expenses of these witnesses have teen properly allowed. Their having been brought up arises from the course taken by the pursuers, who chose to include Williamson as a defender along with the Marquis of Lothian. The Marquis's case was to throw blame upon Williamson; and was not Williamson entitled to prepare his case in a fair and bona fide way, which he did? He was called upon to bring witnesses, both on the point of the duties of managers of coal-works, and as to the dislocation of the seam, to protect himself and be ready; and he was entitled to prepare his case in the best way he could, with reference to the averments in the record and the issues.

The other Judges having concurred,

The Court repelled the objection.

Solicitors: Mowbray and Howden, W.S.— Tod and Romanes, W.S.— W. Allan, S.S.C.—Agents.

SS 16 SS 1210 1838

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