Page: 290↓
[
(Ante, p. 177.)
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.
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—
Page: 291↓
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.
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.
The Court sustained the objection.
Counsel for Pursuers (Reclaimers)— Keir. Agents— Webster & Will, S.S.C.
Counsel for Defenders (Respondents)— Rutherfurd. Agents— Lebum, Henderson, & Wilson, S.S.C.