Scottish Court of Session Decisions

White brought an advocation of the judgment of the Sheriff of Ayrshire, in a process in which he was defender, and the Lord Ordinary, “in respect the action in the inferior court is expressly laid on the ground, that the respondent (and others) had obtained an assignation to a lease, &c., and that it is admitted that no such assignation ever was granted,—advocated the cause, &c, assoilzied the advocator, &c.; but found no expenses due to either in this or the inferior Court.”

The Lord Ordinary, in a note, expressed his opinion that the interlocutor of the Sheriff was founded in substantial justice; and stated his regret, that a due regard to correct procedure rendered it impossible to avoid absolvitor, where the title set forth in the summons had been departed from.

White reclaimed, and contended that, without regard to the merits of the case, expenses of process ought to be awarded, wherever a pursuer's action was dismissed on the ground of his abandoning the title on which he had libelled. Wherever that occurred, he had brought an action which he ought not to have raised, and he ought to be subjected in the expenses of it.

The Court held the question of expenses to be in all cases a matter within their own discretion; and in the special circumstances their Lordships concurred with the Lord Ordinary. The Court refused the note, and found the respondents entitled to the expense of opposing it.