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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Marquis of Huntly, Petitioner. (Ante, p. 360.) [1868] ScotLR 5_614_1 (26 June 1868) URL: http://www.bailii.org/scot/cases/ScotCS/1868/05SLR0614_1.html Cite as: [1868] ScotLR 5_614_1, [1868] SLR 5_614_1 |
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Page: 614↓
(Ante, p. 360.)
An heir of entail in possession obtained a judgment of the Inner-House (reversing judgment of Lord Ordinary) finding that consigned money might competently be applied in procuring a renunciation of a lease as a permanent improvement within the meaning of the Montgomery Act. Held that the expenses of the reclaiming note were not a reasonable charge against the Railway Company.
The Auditor, in taxing the petitioner's account of expenses, taxed off a sum of £24, 17s. 2d. of expenses incurred in connection with the reclaiming note presented by the petitioner on 28th January 1868, and on which judgment was given in the petitioner's favour on 1st March. The petitioner lodged a note of objection to the Auditor's report. The Lord Ordinary ( Mure) reported the matter to the Inner-House.
H. Smith for petitioner.
Lancaster for Railway Company.
At advising
Lord President—The question raised by this note of objections is, whether the Railway Company are liable in the present case for certain expenses, said to have been incurred by the pursuer in re-investing the money consigned by the Railway Company. That depends, in the first place, on the construction of the 79th section of the Lands Clauses Act, and, in the second place, on the view which we may in our discretion take of this particular claim for expenses, for under that section it is not imperative to award all the expenses that fall under the general description of being incidental to the procedure, and the Court are left to deal with the matter as they think just. The words of the section are, that “it shall be lawful for the Court of Session to order the expenses of the following matters, including therein all reasonable charges and expenses incident thereto to be paid by the promoters of the undertaking,” &c. It is left to them to consider what are reasonable. The matter here is the re-investment of money, and the question is, whether the expenses are reasonable charges and expenses, incidental to proceedings for the investment of money? The Auditor, as I understand, has allowed all the expenses incurred under this petition except that of reclaiming against the Lord Ordinary's interlocutor of 21st January 1868, and the bearing on that reclaiming note.
Now the question raised by that reclaiming note was singular and new, and attended with a good deal of difficulty, and it appears to me that it would not be reasonable to make that a charge against
Page: 615↓
The other judges concurred.
Solicitors: Agents for Petitioner— Henry & Shiress, S.S.C.
Agents for Railway Company— H. & A. Inglis, W.S.