Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by WILLIAM FORBES, ADVOCATE.

Sir Andrew Kennedy, Conservator, &c
v.
Sir Alexander Cuming of Culter

Date: 30 July 1712

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The Lords, 26th of June last, having found Sir Alexander Cuming obliged to answer to Sir Andrew Kennedy's claim of expenses summarily; it was contended for Sir Alexander, 1. Seeing in this case expenses are ordered to be taxed, according to the course of the session, none can be modified; because by the practice of the session, no expenses are due, where there is probabilis causa litigandi. Now, Sir Alexander had causam litigandi maxime probabilem: in so far as he had not only the opinion of the doctors of the civil law, but also the authority of a decreet of the session itself on his side; and it was never heard, that a party prevailing, should in the same court where his action was sustained as just, be condemned in expenses as temere litigans. 2. There is no precedent for charging, in this account before the Lords of Session, the expenses of the appeal before the House of Peers. 3. If the Lords were to proceed to modify expenses, they could not enter into the detail, or particular consideration of the account given in by Sir Andrew, nor modify a greater sum in the whole, than used to be modified in other processes before the session, where there had not been eminent calumny or contumacy.

The Lords found, 1. That the remit from the House of Peers to tax expenses, implies that expenses are to be modified, but that their Lordships are to determine the quantity. 2. That the expenses of discussing the appeal are not to come in computo, or be considered in this modification. 3. The Lords, without entering into the detail, or particular consideration of Sir Andrew Kennedy's account of expenses, modified L100 Sterling of expenses, to be paid to him by Sir Alexander Cuming.

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