Scottish Court of Session Decisions

The late David Cockburn, engineer, Glasgow, on 19th February 1889, executed a disposition of his property and business in M'Neill Street, Glasgow, in favour of his son Robert Cockburn.

On 2nd April 1889 he executed a trust—disposition and settlement in favour of Robert Cockburn, his son, and others, as trustees, whereby he gave the liferent of his heritage (his property being almost entirely heritable) to the wife of Robert Cockburn, and the fee to her children, excluding expressly his other children.

David Cockburn died on 8th March 1892.

On 7th December 1892 an action was raised by Lawrence Cockburn on behalf of himself and his two sisters—the remaining children of David Cockburn—against the trustees under the trust-disposition of 2nd April 1889, and Robert Cockburn as an individual, concluding for the reduction of the two deeds of the 19th February 1889 and 2nd April 1889.

The case was tried before Lord Wellwood and a jury on 20th February 1894 upon three issues. The first and second issues were, whether the deceased David Cockburn was weak and facile at the respective dates upon which he executed the two deeds, and whether they were obtained by the defender Robert Cockburn and his wife through fraud and circumvention, taking advantage of his weakness and facility. The third issue was whether by the disposition of 19th February “the deceased David Cockburn made over to the defender Robert Cockburn the moveable estate and effects conveyed therein in fraud of the legal rights of his children other than the said Robert Cockburn.”

A verdict was returned for the pursuer on all the issues, and on 24th May 1894 this verdict was set aside by the First Division, as contrary to the evidence, and a new trial granted.

The pursuer on 31st January 1895 gave notice of trial, which was fixed for 4th March proximo.

On 5th February the pursuer lodged a note in process stating that he “did not intend to prosecute further the present case as regards the first and second issues as adjusted, and that he intended to restrict and hereby restricted his case to the third issue, on which alone he will proceed to trial.”

The trustees on 19th February 1895 lodged a note in which they stated that they were interested in the second issue only, and that the withdrawal by the pursuer of this issue amounted to the abandonment of the case against them. They craved the Court to assoilzie them from the conclusions of the summons, “to find the pursuer liable in the expenses of the first trial, and subsequent hearing on the rule

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to show cause, and also to ordain that payment of the taxed account of said expenses should be a condition-precedent to the pursuer proceeding with the trial appointed to take place on 4th March next.”

Argued for the trustees—The general rule as to expenses in these cases was that when a new trial was granted expenses were reserved, and if the party who was unsuccessful in the first trial were successful in the second, no expenses would be granted to either side. There were, however, exceptions to this rule, and the present case was one. The pursuer had abandoned his case against the trustees, against whom he had made charges qua their conduct as trustees which ought never to have been brought. They were therefore entitled to expenses. The case was identical with that of Pagan v. Pagans and Fords, July 15, 1871, 8 S.L.R. 645. Expenses had also been granted in the cases of Lyell v. Gardyne, November 20, 1867, 6 Macph. 42; Macbride v. Williams, May 22, 1869, 7 Macph. 790. Moreover, the issues were quite inconsistent, since the first and second indicated that the disponer was too weak and facile to be capable of executing a deed, the third that he had done so “in fraud of the legal rights of his other children.”

Argued for the pursuer—The inconsistency of the issues was only suggested for the first time on the hearing of the motion for a new trial. The pursuer had accepted the warning of the Bench, and accordingly dropped the issues on fraud and circumvention. The rule as to expenses in these cases was laid down in Lindsay v. Shield, January 31, 1863, 1 Macph. 380. The only circumstances in which the defenders would be entitled to expenses were when the pursuer had obtained his verdict in the first trial by misconduct or misrepresentation. This had not been done here. Mackay's Manual, 647. In Pagan's case expenses had only been allowed because the action had been brought with an ulterior purpose— Stewart v. Caledonian Railway Company, February 4, 1870, 8 Macph. 486.

At advising—