JAMES STEWART v ALEXANDER SCOT (Court of Session)

The former proceedings in this case will be found already reported, on the 6th March 1832, (ante, vol. vii. p. 316.)

The case having been thus again brought before the Court of Session, it was remitted to the Lord Ordinary, to carry into effect the finding pronounced by the House of Lords, when his Lordship pronounced the following interlocutor:

‘The Lord Ordinary having resumed consideration of this petition, with the debate, of consent assoilzies the petitioner from all the conclusions of the action, and decerns finds him entitled to expenses; allows an account thereof to be given in, and remits the same, when lodged, to the Auditor for taxation.’

Note. —‘The defence ultimately sustained being, in substance, that there was from the beginning no competent ground of action, the Lord Ordinary had no doubt that expenses were due on the merits, and this, indeed, seemed scarcely disputed by the respondent. The only point of contention was the competency of awarding such expenses prior to the appeal, which issued in a judgment of reversal, with a general remit ‘to do what was consistent with that judgment.’

If there was less ground for hesitating as to their general import, it would still be difficult to reconcile the decisions in the cases of Mactavish and Wilson, with the express terms of the judgments of the House of Lords in these cases, which specially reversed interlocutors of this Court refusing expenses to the appellants. It might be going too far to hold that this reversal was equivalent to finding expenses due; but it seems strange to say, that it did not make the claim for them at least competent.