Defender's claim for expenses incurrecd in a successful opposition to a bill of advocation at the pursuer's instance, ought to be made in the original action still pending, and not by a separate one, though before the same judge.
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In a contract with the Town of Glasgow for building a bridge over the river Clyde, Adam and Shaw, the undertakers, had got communicated to them a servitude to dig for stone quarries, &c., within the lands of Alston and Fleming; and, having opened and wrought a quarry in Fleming's ground, two several complaints of these operations were, by Alston and Fleming, preferred to the Sheriff of Lanark; and, after various procedure before him, Alston and Fleming did severally present bills of advocation, which, after a keen litigation, were ultimately refused by the Court: For the expense of which, and likewise for damages sustained by their operations being stopped, Adam and Shaw instituted an action before the Sheriff, who having decerned for payment of the accounts given in by the pursuers, together with the expense of the present action, Alston and Fleming complained of this judgment by bill of advocation: And the cause having been advocated, and taken to report, the Court went upon the point of form, whether it was regular to bring a new action for expenses incident in one that was still depending, and where they might be claimed, and awarded, if just.
“The Lords dismissed this process, reserving to insist in the original process before the Sheriff, and therein to claim the expenses.”
Reporter, Kennet.Act. M'Laurin.Alt. Ilay Campbell.Clerk, Ross.
Fac. Col. No 1. p. 1.
