A person assoilzied, in consequence of his oath, was, notwithstanding, found liable in expenses, on account of improper conduct.
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Robert Smith chirurgeon having pursued John Hamilton in Elgin, for payment of L. 200 he had entrusted him to uplift from one of his debtors; he first denied the trust, and that being made out against him by witnesses and other pregnant adminicles, then he founded on a discharge; and it being referred to his oath, that this debt was neither actum nor tractatum to be comprehended, he, after much shifting and tergiversing, at last compeared, and deponed that it was communed and included, whereupon he is assoilzied and gains the cause. But Smith gave in a bill, representing how calumnious he had been in all the steps of this process, and had most disingenuously denied the trust, till it was clearly proven against him; and that he had declined all along to depone, by which he had put Robert Smith to vast expenses in adducing witnesses to evince the trust; and therefore craved that he might be condemned in his expenses. The Lords thought the case new, for one who had lost the cause to crave expenses of him who had gained it; seeing the rule of law lay just in the contrary, that victus victori in expensis condemnatur: Yet the Lords, considering that such cases might fall out, where the party who wins the cause may be most calumnious in the managing of it, and that here he had maliciously put Mr Smith to vast charges in proving a trust which afterwards he acknowledged; therefore they found him liable in Mr Smith's expenses, which they modified to L. 200 Scots, especially seeing his absolvitor proceeded upon his own oath. This is the first case in which I have observed the victor to pay the expenses of him who has succumbed in the cause; but in effect it was imposed in modum pænæ, for his calumnious management of the process. In the English law, there is a parallel case betwixt Mrs Jones and Sir Robert Ker, marked by Mr Turner in his folio history of Remarkable Providences, cap. 134.
Fol. Dic. v. 1. p. 287. Fountainhall, v. 2. p. 110.
