Scottish Court of Session Decisions

Lord President—I do not think there is any fixed rule which forms a safe guide in such cases as this. The so-called rule established by the decisions in the cases of Stoppel and Smellie's Trustees goes no further than this, that when the Court is of opinion that the expenses should be divided, the mode of effecting that is not to be a mere haphazard division, but that they will ascertain through the Auditor what amount of expense is applicable to each branch of the case; and it seems to me that that is the only course we could take, namely, to remit to the Auditor to report. But we must not do that unless we are prepared to carry out his report. Now, I cannot say that I am prepared to do so, because it is quite possible that a very small part of the expense is attributable to the pursuer. The case is a peculiar one, and much difficulty arises from the fact that it is not easy to understand on what principle the jury found the verdict which they did for the pursuer. He charges against the defender no more than he admitted himself in the witness box, so that the verdict is really not intelligible, but still we must, deal with it as we find it; and taking it as it stands I cannot say that the judgment of the Lord Ordinary does any injustice to either party, and I am besides disposed to pay great deference to the opinion of the Judge who presided at the trial.