Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1871/08SLR0341.html
Cite as: [1871] ScotLR 8_341, [1871] SLR 8_341

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SCOTTISH_SLR_Court_of_Session

Page: 341↓

Court of Session Inner House First Division.

Saturday, February 4. 1871.

8 SLR 341

Forbes

v.

The Ministers of Old Machar.

( Ante, Vol. V, p. 335, and Vol. VI, p. 726.)

Subject_1House of Lords
Subject_2Petition to apply Judgment
Subject_3Expenses.
Facts:

Where the House of Lords has pronounced a judgment exhausting a cause, and not containing any finding as to expenses before appeal, the Court will not dispose of the question of expenses.

Headnote:

In the process of augmentation and locality of Old Machar a question arose between the ministers and certain heritors, of whom Mr Forbes was one, as to the validity of certain decrees of valuation of teinds. The Court of Session held the valuations bad, and found the heritors liable to the ministers in expenses. On appeal, the House of Lords reversed and ordered the expenses paid by the appellants to the respondents to be repaid, but made no order as to the appellants' expenses in the Court of Session. In a petition for applying the judgment of the House of Lords, Mr Forbes now moved for his expenses previous to the appeal.

Fraser for him.

Asher in answer.

The cases of Stewart v. Scott, 11 March 1836, 14 S. 692, and Railton, 12 June 1846, 8 D. 812, were referred to.

Judgment:

Lord President—This is a question on a closed record. It arose in a process of locality, but every question on which a record is made up and judgment pronounced is for all practical purposes a separate cause. The House of Lords exhausts the case, and while it orders the expenses paid by the appellants to the respondents to be repaid, it says nothing farther as to expenses. The rule laid down in Stewart v. Scott is directly applicable, that where a judgment of the House of Lords exhausts a cause and contains no finding as to expenses, it is not intended that we should dispose of them.

The other Judges concurred.

The Court applied the judgment, but refused the prayer so far as it prayed for expenses in this Court previous to the appeal.

Solicitors: Agents for Petitioner— Henry & Shiress, S.S.C.

Agents for the Ministers— H. & A. Inglis, W.S.

1871

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