M'Elroy & Sons v. Tharsis Sulphur and Copper Co.

Subject_1 Expenses Subject_2 Modification. Facts: Where the Court had given the pursuers in an action decree for expenses subject to modification, and remitted to the Auditor to tax and report, the Auditor disallowed all expenses incurred by the pursuers in branches of the case in which they were unsuccessful. The pursuers objected, urging that the modification to be made by the Court referred to the part of the case in which they had been un727, successful; the Court affirmed the Auditor's report.

The Auditor in consequence lodged the following special report:—“Having considered the note of objections for the pursuers to his report of 8th March 1879 on the account of expenses to which they are entitled under the interlocutor of the Lord Ordinary ( Curriehill ), of 29th May 1877, and the interlocutors of the Court of 17th November 1877 and 28th February 1879, with the account itself, the proceedings in the case, and the interlocutor of the Court of 18th March 1879 (under which this report is made), the Auditor now reports,—

“ First , That in taxing the account in question he has proceeded in the same manner as if the finding of expenses had been in general terms without mention of modification;

Second , That the taxation has been affected by the fact that the pursuers have partially failed in the litigation only in this respect, that he has disallowed all expenses clearly distinguishable as connected with the portions of the case in which the pursuers have not been successful; and

Third , That in the audit he has not attributed any effect to the finding of the Court in regard to modification.