Scottish Court of Session Decisions

In this case, which was brought for reduction of the trust-deed and settlement of the late Mr Pagan of Clayton, writer and banker in Cupar-Fife, an issue was sent to a jury, on which they returned a verdict in favour of the pursuer, who was the deceased's eldest son. The defenders (Fords) moved for a rule to show cause why a new trial should not be granted. After a hearing upon the rule, which was granted, their Lordships came to be of opinion that the rule should be made absolute and a new trial granted. When the case came up on the defenders' motion to fix the day for the new trial, the pursuer appeared, and put in a minute, stating that in the first trial he had effected the only object he had in view, and cleared his own reputation as a man of business from certain imputations which he had considered put upon it, and he did not intend to prosecute the action farther, but would consent to absolvitor going out.

The case thereafter came up on a motion for absolvitor, with expenses, on the part of the defenders.

Solicitor-General ( Clark), with him Lee and Watson, for the defenders, contended that the expenses of the first trial, which had been reserved by their Lordships upon granting a new trial, in accordance with the general usage of the Court in such cases, should now be given him. They urged that where the first trial failed through the miscarriage of the jury, the practice was to give no expenses to either party. But here the pursuer, taught by the experience of the first trial, did not think proper to go to a second, but consented to absolvitor going out, on the verdict in the first being set aside. Referring to the pursuer's minute, he endeavoured to show that the pursuer had not brought the action so much to get his father's deed set aside as to free himself personally from what he considered a

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slur cast upon his professional character, and to keep the Clayton estate in the family. Being frustrated in this object for the present, he had abandoned the action, and should therefore be held liable in the full expenses. Reference was made to the cases of Lyell v. Gardyne, 20th Nov. 1867, 6 Macph. 42, and M'Bride v. Williams, 22d May 1869, 7 Macph. 790.

Gordon, D.-F., Asher and Campbell Smith, for the pursuer, vindicated his good faith in bringing 4he action, and contended that no expenses should be given. They referred to the cases of Miller's Trustee v. Shield, 31 Jan. 1863, 1 Macph. 380; Neville v. Clark,6 Feb. 1864, 2 Macph. 625; Burns v. Allan & Co., 20th Dec. 1864, 3 Macph. 269; Stewart v. Caledonian Rail. Co., 4 Feb. 1870, 8 Macph. 486.

At advising—