CALEDONIAN IRON AND FOUNDRY COMPANY v DAVD CLYNE (Court of Session)

Thereupon the Lord Ordinary intimated to the parties, that he was to report verbally to the Court ‘the point stated in the minute and answers, whether it be competent to the Lord Ordinary to assoilzie the defender from this process, on the pursuers abandoning it, with the view of bringing another action against the defender, without finding them liable in expenses to him .

This point being accordingly reported to the Court, the Lord Justice-Clerk said—I entirely concur with the Lord Ordinary, that the provision of the act of Parliament does not apply to a case like the present. But then comes the question, is not the defender entitled to his expenses, upon the pursuer's abandonment of the action and consent to a judgment of absolvitor? I think he is so entitled ex debito justitiæ; and in giving that opinion, I do not look into the merits of the former action, or grounds of the judgment of the House of Lords.

The Lord Ordinary, accordingly, in respect of the instructions of the Court , assoilzied the defender, and found him entitled to expenses.

Lord Medwyn, Ordinary. For the Pursuers, Rutherfurd, A. Dunlop. John Kennedy, W. S. Agent. For the Defender, Dean of Fac. (Hope,) More, Maidment. Party, Agent. F. Clerk.

When this process came before the Lord Ordinary, a proposal was ineffectually made as to sisting process till the result of the appeal of the other action should be known.