Scottish Court of Session Decisions

Clark and Watson, for the pursuer, supported the motion chiefly on the ground that the defender had failed in the first trial to adduce certain witnesses whose evidence was, in the second trial, held to be very material for the defender's case. The defender had thus simply made use of the first trial as a rehearsal. They opposed the defender's motion for expenses on the authority of Lindsay v. Shield, 31st January 1863.

Solicitor-General ( Millar), and Æ. J. G. Mackay for defender.—In none of the cases have the expenses of the first been given to the party losing the second trial where the expenses of the first have been reserved; the most he can ask is that these expenses should be given to neither party. The present is an exceptional case, of the nature alluded to by the Lord President and Lord Deas in Lindsay v. Shield—the pursuer having shown bad faith in bringing the action when his predecessors had acknowledged by letter that the road was private. The defender therefore should have the expenses of the first trial: his evidence at both trials had been substantially the same.

The following cases were cited:— Lindsay v. Shield, 31st January 1863, 1 Macph., 380; Barns v. Allan & Co., 20th December 1864, 3 Macph., 269; Millar v. Hunter, 24th November 1864, 4 Macph., 78; Magistrates of Elgin v. Robertson, 12th March 1862, 24 D., 780.

Lord President—The only anxiety I have in disposing of this case is, that we should not seem to throw any discredit on the general principle that is enounced by Lord President M'Neill in the case of Lindsay. I agree with the principle which that judgment contained, and particularly with the way in which the Lord President enounced it. If there arise a pure case of a verdict in a first trial for a pursuer, and then, that being set aside as against evidence, a verdict in a second trial for the defender—there being no appearance or allegation of mispleading or misconduct of the case on either side—the proper course would be to find neither party entitled to the expenses of the first trial. The only question is, Is this a case for the application of that rule? For, as to the pursuer's claim for expenses, that is out of the question; and the only difficulty is, Has the defender a right to the expenses of the first trial? Now, I cannot see that it was through any fault of the defender that he did not gain a verdict in the first trial. It was against him, but the jury ought to have found for him, and therefore there was no misconduct attributable to the defender. That, however, is not enough to lead the Court to the conclusion that he ought to have the expenses of the first trial. But looking to the nature of this case, there are some things weighing unfavourably on the pursuer. This is a case of one or two conterminous proprietors claiming a road through a neighbour's policy, and he is not content with a servitude, but he insists on making the road public. Now, I cannot help supposing that in claiming on that ground he speculated on the inclination of a jury as to public roads, and he probably got his first verdict by shaping his claim in that way. If so, that would

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