Scottish Court of Session Decisions

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Cite as: [1876] SLR 13_290, [1876] ScotLR 13_290

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SCOTTISH_SLR_Court_of_Session

Page: 290↓

Court of Session Inner House First Division.

Wednesday, February 16. 1876.

[ Lord Shand.

13 SLR 290

Smith, Laing, & Co.

v.

Maitland.

(Ante, p. 177.)

Subject_1Process
Subject_2Expenses
Subject_3Auditor's Report
Subject_4Act of Sederunt of 19th December 1835.
Facts:

In the taxation of the account of defenders, who had been assoilzed with expenses, the expense of a minute lodged by them, supplying information which was not founded upon in the ultimate decision of the case, was disallowed.— Held that the Auditor had no power, either under the Act of Sederunt of 19th December 1835 or otherwise, to interfere in such a case.

Headnote:

This case came up upon an objection to the Auditor's report.

The question in the case was whether the defender was bound to relieve the pursuers of the public burdens imposed upon certain subjects which they held from him under feu-charter, and the defenders were assoilzied from the conclusions of the action, and found entitled to expenses. The Auditor disallowed these so far as regarded a minute which the defender had put in process, explaining the nature of the subjects as originally conveyed by the feu-charter, and of the buildings erected upon them, and the relation in which the pursuer's author and the defenders stood to each other at the date of the charter. This information the Lord Ordinary had ex proprio motu directed the defenders to furnish. The case was ultimately decided upon the terms of the feu-charter alone, without regard to the minute. The Auditor, in these circumstances, declined to allow the defenders expenses in connection with it, in reliance on the Act of Sederunt of 19th December 1835.

At advising—

Judgment:

Lord President—It seems to me that in this matter the Auditor has been under a misapprehension in proposing to disallow expenses incurred in lodging a minute which we are told was ordered by the Lord Ordinary ex proprio motu. The object of the minute was to clear up the nature of certain changes which had taken place through the erection of expensive buildings upon the subjects which the defender's predecessors disposed of to the pursuers or their authors. During the inquiry another matter emerged which was not anticipated and not mentioned on record, viz., that previously to the sale the parties who were afterwards superior and vassal had occupied the position of landlord and tenant to one another under a tack for 999 years. This fact, and the other question as to how far the erection of buildings might operate in giving effect to a clause of relief, were both proper for consideration, and had a bearing on the question at issue. The Lord Ordinary gave effect in his judgment to the view founded upon the previous relation of the parties as landlord and tenant. He did not deal with the circumstance of the erection of new buildings, and when the question was brought before us, we thought the safest course was to construe the charter

Page: 291↓

according to its own terms alone. I do not think it follows that the defender can be said to have failed. He has been successful on the whole case, and has got absolvitor, and whether that result proceeded upon one ground or another does not affect the present question. There is no one part or branch in which he has been unsuccessful.

I do not understand that the Auditor has power to interfere in such a case. It is not a general audit, nor is it a disallowance of overcharges. This part of the expense is said not to have been of any use, but that is a totally different matter. The defender must be allowed his expenses in this part of the case as in the other.

Lord Deas—There has been some misunderstanding on the part of the Auditor of the Act of Sederunt of 15th December 1835. It does not apply to a point of this kind. The Lord Ordinary is quite entitled to order a statement of this nature for the sake of getting an explanation, and the fact that he did so cannot be held to affect the question of expenses. I should have been of that opinion even if I had thought that what the Lord Ordinary ordered was unnecessary, but so far from that, I think he was quite right in the course he followed. There have been previous cases of this kind where we have held that the erection of buildings was of great importance in the consideration of the rights of parties, and we did not hold in this case that it was incompetent to have regard to them.

So far as regards the question of the propriety of procedure, the Lord Ordinary was quite right. If a party gains his case on a different plea from that to which the Lord Ordinary has given effect, that may be a ground for a modification of expenses, but not for disallowing them. In this case it was necessary to have all these facts before us, and although we found the terms of the deed sufficient for the decision of the case, we did not determine that we were excluded from inquiry into the matters brought out in this minute under direction of the Lord Ordinary.

Lords Ardmillan and Mure concurred.

The Court sustained the objection.

Counsel:

Counsel for Pursuers (Reclaimers)— Keir. Agents— Webster & Will, S.S.C.

Counsel for Defenders (Respondents)— Rutherfurd. Agents— Lebum, Henderson, & Wilson, S.S.C.
1876