Judgment:
Lord Deas—No doubt the question of expenses is of great importance to the parties, but, having had to do with the case throughout, I have no doubt how that question should be decided. The magistrates made a table of rates in 1854, which has now been found not to be a lawful table. It had many items which have not been supported. What they are is of little moment, except as showing that substantially the action went in favour of the public. This action was not raised until 1862, and, so far as one can see, if this action had not been brought, this table would have been acted on in all time coming until some one challenged it. The magistrates were not entitled to wait until some one brought an action of reduction or declarator to have this set right. When objections were made to particular items it was the duty of the magistrates to consider them; and if they seemed illegal or doubtful, it was their duty to make a table so as to satisfy the rate-payers, or to come here to have it found and declared that the table was right. In such a case, if no public spirited individual is found to bring up the matter, it might go on for ever. I don't care whether the action was brought by the whole gentlemen of the county, or by one or two of them. It was most proper to bring it; and the natural and proper result is, that the parties opposing it and causing all this expense in getting a thing done which they ought to have done themselves, should bear the expenses. There was no disposition throughout this action to get this matter adjusted. On the contrary, when there was a remit to an accountant, and a table was framed on a certain construction of the judgment of this Court which we held was unsound, it was maintained by the defenders that that table must stand. The case is just this, that the magistrates have been very zealous to increase the revenues under their charge, and they have failed, and the ordinary consequence is that the funds for the benefit of which that was done must bear the expense of the litigation. I think the pursuers should have all their expenses in the Outer House, and the expenses in the Inner House since the date of the last interlocutor reclaimed against. The pursuers may have been unsuccessful in some points, and, of course, under the Act of Sederunt, the expenses applicable to these points will be struck off.
Lord Ardmillan thought that, as the preponderance of success bad been in favour of the pursuers they were entitled to their expenses, with some small modification.
Lord KinlochIf I had been deciding this question myself, I should have found the pursuers entitled to expenses, subject to modification, reserving to myself the power to modify to such extent as I thought right. It is clear that the magistrates were wrong in holding fast by the table of 1854 as an alleged adaptation of the old table of 1772, and the pursuers were compelled to come to this Court in order to get that table rectified. On the other hand, it is undoubted that among the numerous details of the case there are several as to which the defenders have been successful; and therefore, while the pursuers are generally entitled to their expenses, I think these should be subject to some modification.
Lord PresidentMy acquaintance with this case is less than that of your Lordships, but I think the pursuers are entitled to their expenses without any modification, and my reason for that is that, as Lord Ardmillan says, the great preponderance of success is on their side. In such cases I don't see how any one could expect more, for there is a great deal of detail, and much investigation necessary, and no pursuer, however prudently he conducts his case, can expect to be wholly successful. The fact that they have been so successful is the greatest compliment that could be paid them as litigants in such an action.
This interlocutor was pronounced:—
“Edinburgh, 18
th June 1869.—The Lords having resumed consideration of this cause, with the report of Mr Charles Ogilvy, dated 28th May 1869, No. 154 of process, and heard counsel for the parties, Find that the defenders are not entitled to levy any dues which have not been in use to be levied for 40 years or time immemorial prior to the raising of this action; approve of the said report and of the table of dues appended thereto: and, in conformity therewith, find that the said table is to be the only table to regulate the levying the Dumfries Bridge Custom in all time coming: To this extent and effect repel the defences, and declare and decern in terms of the declaratory conclusions of the libel: Find it unnecessary to dispose further of any of the conclusions: Find the pursuers entitled to expenses incurred by them in the Outer House and also in the Inner House since the said interlocutor of 17th December 1868: Allow an account to be given in, and remit to the auditor to tax the account when lodged and to report.”
