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

To the latter demand it was objected, 1 st , That as the judgment of the House of Lords simply reversed the interlocutors of the Court, without saying any thing about expenses, it was incompetent to the Court, under the remit, to award to the defender any part of his expenses. 2 d , Supposing the competency of such demand, yet, as the ground of the reversal was not amongst the defences mainly relied on in this Court, the defender's ultimate success affords no reason for finding him entitled to any expenses.

Answered —1 st , The ground of decision in Dick v. Cuthbertson, 19 Jan. 1828, applies a fortiori to the question of competency in the present case. It cannot reasonably be doubted that the cause was remitted for no other purpose than to enable this Court to find expenses due to the defender, it not being the practice of the House of Lords to give expenses against the respondent in the appeal. 2 d , Although the Lord Chancellor held one of the defender's pleas sufficient for the decision of the cause, it appeared that he entertained no doubt of the validity of the other grounds of defence.

The Court accordingly assoilzied the defender from the conclusions of the action, and found him entitled to expenses hitherto incurred in this Court, subject to modification, together with the expenses of the present application.

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