Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1867/05SLR0131.html
Cite as: [1867] SLR 5_131, [1867] ScotLR 5_131

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SCOTTISH_SLR_Court_of_Session

Page: 131↓

Court of Session Inner House First Division.

Friday, December 20. 1867.

5 SLR 131

Jenkins and Others

v.

Murray

(4 Macph. 1046., ante. iii. 368.)

Subject_1Expenses
Subject_2Auditor
Subject_3Three Counsel
Subject_4Jury Trial.
Facts:

Circumstances in which the Court gave the defender, who obtained a verdict in a second trial in absence of the pursuer, the expenses of the first trial, in which he had been unsuccessful. Expense of third counsel disallowed.

Headnote:

This was a question between W. Jenkins, jun., Stirling, and others, and Lieut.-Colonel Murray, of Polmaise, as to the right of the public to use a road, called the Bearside Road, through the lands of the defender, in the vicinity of Stirling.

The jury returned a verdict for the pursuer. On 12th July 1866 the Court set aside the verdict, and granted a new trial, reserving all questions of expenses. The second trial was appointed for the Spring Sittings. The defender moved for a special jury. The Court granted the motion. The case came on for trial on Thursday, 11th April 1867. No appearance was made for the pursuers. The special jury was empannelled, and a verdict was returned for the defender. Thereafter, on the motion of the defender, the Court, on 24th May 1867, pronounced this interlocutor:—

“Apply the verdict found by the jury on the issue in this cause, and in respect thereof assoilzie the defender from the conclusions of the libel, and decern: Finds the defender entitled to expenses; allows an account, &c.”

The auditor taxed the account at £563, 1s. 4d., “reserving for consideration of the Court (1) whether the general finding of expenses contained in the interlocutor dated 24th May 1867, includes the expenses of the first trial, in which the defender was unsuccessful, these expenses amounting to £252, 8s. 3d.; (2) whether the expense of a third counsel ought to be allowed.”

Judgment:

Johnston, for defender, contended that the expenses of the first trial, and also of a third counsel, ought to be allowed.

No appearance was made for pursuers.

Lord President—There is great specialty in the present case, for practically there was only one trial, although two verdicts, and, as I understand the case, the evidence led at the first trial was such, with reference to the law applicable to that evidence, that the verdict ought to have been for the defender. Now the defender, by the subsequent proceedings, has got his verdict, because the pursuers felt that they could not get a verdict, and therefore did not repeat their evidence. It seems to be very much a case where there is one trial on a matter of fact, and a verdict for the defender. My impression is that the defender ought to have the expenses of the first trial. It is a very special case. I think the expense of the third counsel cannot be allowed.

Lords Curriehill and Deas concurred.

Lord Ardmillan—I am satisfied that the verdict was held by the Court to be a verdict contrary to evidence. There has been no second trial, and if the defender did not get the expenses of the first trial, the result would be that he would not get the expense of leading that body of evidence on which he got a favourable judgment. On the question of the expense of a third counsel, I concur.

Solicitors: Agents for Defender— Russell & Nicolson, C.S.

1867

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