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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Duke of Hamilton, Petitioner. v. John Graham Barnes Graham, Respondent [1872] ScotLR 9_304 (2 March 1872)
URL: http://www.bailii.org/scot/cases/ScotCS/1872/09SLR0304.html
Cite as: [1872] SLR 9_304, [1872] ScotLR 9_304
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SCOTTISH_SLR_Court_of_Session
Page: 304↓
Court of Session Inner House First Division.
v.
(Vide ante, vol. vi., 658, and in the House of Lords, 9 Macph., p. 98.)
Facts:
Where a judgment of the House of Lords reversed that of the Court of Session, and remitted back to that Court to assoilzie the defender in the action, and to find him entitled to the expenses incurred by him in the said Court,— Held that the defender was entitled to the expenses of the petition to apply this judgment of the House of Lords.
In this case the judgment of the House of Lords, of date 28th July 1871, was in the following terms:—“It is ordered and adjudged by the Lords spiritual and temporal, in Parliament assembled, that the said interlocutor of the Lords of Session in Scotland of the First Division, of the 5th of July 1869, complained of in the said appeal, be, and the same is hereby, reversed, and that the cause be, and is hereby, remitted back to the Court of Session in Scotland, with instructions to that Court to assoilzie the appellant (defender in the action in the said Court) from the whole conclusions of the libel, reserving right to the respondent (pursuer in the said action) to challenge, upon any competent ground, any operations upon the surface of the said lands by the appellant (defender) or his tenants or successors, and to them their defences thereanent; and to find the appellant (defender) entitled to the expenses incurred by him in the said Court, and to do further in the said cause as shall be just and consistent with this judgment.”
The defender, the Duke of Hamilton, presented a petition to have this judgment of the House of Lords applied, and, inter alia, asked the expenses of the said petition to apply the judgment.
Keir, for him, contended that, where the application of a judgment was necessary in order to the successful party obtaining the benefit of it, he was entitled to the expenses of the petition. Authorities— Collins v. Young, May 81, 1853, 15 D. 702; Pitt, June 4, 1864, 2 Macph. 1153; and Fleeming v. Howden, Nov. 6, 1868, 7 Macph. 79.
Watson for the respondent.
The Court allowed the expenses of the petition in conformity with the previous practice.
Solicitors: Agents for Petitioner— Tods, Murray, & Jamieson, W.S.
Agents for Respondent— Graham & Johnston, W.S.