Scottish Court of Session Decisions

Scott for pursuer.

Rutherfurd for defenders.

At advising—

Lord President—This question of competency is perhaps new, and it arises very purely. The defenders having been assoilzied on a plea of res judicata, an appeal is taken, and there is a simple reversal of the judgment of this Court, the effect of which is to place the parties in the same position as they were in before the plea was sustained, with this difference, that the plea is cleared out of the way. The House of Lords have said nothing as to expenses, or whether either party is to have them in regard to the discussion of that plea in this Court. I see no ground on which it is incompetent for this Court in proceeding with the cause, as we are bound to do, to determine, in the first place, whether the pursuer should be entitled to the expenses of clearing away that plea at this stage, and therefore I am disposed to consider the matter as clear on principle.

But as to the merits, I do not take so favourable a view of the pursuer's case. In some respects he is in a very unfavourable position, for though no doubt he is in fact a different person from the former pursuer, he is substantially in the same position, and he is going to try the same question which was previously tried. It is settled that, if he has a good case on the merits, he is not to be prevented from establishing his case by the previous judgment. It is for us to exercise our discretion whether he should have expenses now at this stage of the proceedings. Now, on looking at that case, I think the pursuers, the magistrates, who got up their case with very great labour and care, presented to the jury a case which was defective in an essential particular. There was a plain interruption of the right of way in 1838. Their proof of possession only went back to 1798, and therefore there was no proof of possesion for forty years. Having gone back for thirty-seven years, they would have been entitled to presume back for the remainder of the prescriptive period, if the period prior to 1798 had been beyond the memory of man. But that was not the case, for there were witnesses for the defender who knew the ground in question before 1798, and who proved that for some ten years previously there had been no footpath there at all. That evidence was uncontradicted by any evidence led by the pursuers. When the case came before the Court on a motion for a new trial, it was clear that the verdict was bad in law, for there was not a case on the evidence on which the pursuers were entitled to a verdict, and the verdict was set aside, not for the purpose of re-trying the case, for that was of no use unless the pursuers had had at their command a body of evidence as to the period prior to 1798, sufficient to overcome the evidence of the defender. It is competent, no doubt, for this gentleman to come and make out what the magistrates were of opinion they could not make out, but it will not be easy for any one who remembers the previous trial to believe in the existence of such evidence. It is possible there may be; but if, for want of such evidence, the pursuer ultimately fails, it would be very hard on the defenders, who must defend themselves for a second time, that they should be subjected in the long run to any expense. I think the way to do justice is to reserve these expenses to the end of the case.

Lord Curriehill concurred.

Lord Deas—I am of the same opinion. I think it is quite competent for us to give expenses to the pursuer. It is plain from the authorities that the House of Lords do not always express their judgment in these matters of expenses in the same way. In this case it is clear that they did not deal with the matter of expenses, and did not mean to do anything to prevent us from dealing with them. The judgment simply reversed the interlocutor of this Court, and remitted to us to proceed accordingly. This opinion proceeds on the terms of this judgment. But I am clearly of opinion that we ought to reserve the question of expenses.

Lord Ardmillan concurred.