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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> South Metropolitan Gas Company of London v Marquis of Lothian. [1838] CS 16_1210 (23 June 1838) URL: http://www.bailii.org/scot/cases/ScotCS/1838/016SS1210.html Cite as: [1838] CS 16_1210 |
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Page: 1210↓
Subject_Expenses—Verdict—Witness.—
1. In an action where there were two defenders whose cases were separate, and where two issues were sent for trial having reference respectively to each defender, the jury “found for the pursuers on the first issue,” finding nothing as to the second issue; this being substantially a verdict for the defender of the second issue, the Court found him entitled to his expenses. 2. In such action the defender of the second issue held entitled to the expenses of witnesses brought up but not called at the trial, this expense having been incurred in the fair and bona fide preparation of the case for trial, with reference to the pleadings of parties and the issues.
In this case, which was tried March 15, 1838, * the issues were as follow:—
“Whether the defender, the Marquis of Lothian, by himself, or another acting under his authority, and for his behoof, promised and agreed to furnish to the pursuers a quantity of coal called parrot-coal, for a certain period, from July, 1836, in terms of the letter No. 6 of process, or homologated the said agreement; and whether the said defender wrongfully failed to deliver all or any part of the said coal, in terms of the said agreement, to the loss, injury, and damage of the pursuers?
“Whether the defender, John Williamson, wrongfully held himself out as authorized to act on behalf of the Marquis of Lothian, and promised and agreed to deliver to the pursuers the said coal, in terms of the said letter, and wrongfully failed to deliver, or procure to be delivered, all or any part of the said coal, to the loss, injury, and damage of the pursuers?”
“Damages laid at £55,000.”
The Jury “found for the pursuers on the first issue, £1000,”—finding nothing as to the second issue.
On the motion to apply the verdict, the defender Williamson moved for expenses, as having been successful on the second issue. This was
_________________ Footnote _________________
* Reported, of the above date, in Macfarlane's Reports of Jury Trials, p. 13.
The Court held Williamson entitled to his expenses.
On the motion (this day) to approve of the auditors' report of Williamson's account, it was objected by the pursuers that he had been allowed the expenses of certain witnesses who were brought up, but not called at the trial.
The other Judges having concurred,
The Court repelled the objection.
Solicitors: Mowbray and Howden, W.S.— Tod and Romanes, W.S.— W. Allan, S.S.C.—Agents.
