Scottish Court of Session Decisions

A B brought an action of declarator of nullity of marriage against her husband C D, alleging that the defender was impotent, and that the marriage had “never been consummated, no carnal copulation having followed thereupon.” The defender denied these allegations. Proof was fixed for 24th May, but upon 22nd May the pursuer lodged a minute of abandonment and the defender's account of expenses was remitted to the Auditor in the usual way. The Auditor's report was signed on 3rd July. On 4th July the defender's

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agents wrote to their client to ask instructions as to objecting to the Auditor's report, and received an answer on 6th July. Objections were lodged for the defender on 11th July, and the process and report were returned to the Clerk of Court on the same day. These objections mainly related to the disallowing of the following—“ Witnesses' Fees—

Dr Heron Watson, Edinburgh, Disallowed of fee of £315 charged.	£299	5	0
Dr Renton, Glasgow, Disallowed of fee of £323, 8s. charged.”	312	18	0

These fees were charged in respect of the witnesses having gone to London to examine the person of the pursuer in order to enable them to give evidence for the defender at the proof. The pursuer had named London as the place of examination.

The pursuer objected to the competency of the defender's note of objections, and the Lord Ordinary ( Wellwood) reported the matter to the First Division.

“ Note.—… The pursuer maintains that the defender's objections were lodged too late, not being lodged till eight days after the report was signed by the Auditor.

The defender maintains that there being no inflexible rule as to the time within which objections must be lodged, the delay—five days from receiving instructions—was in the circumstances not too great. He further maintains that as the objections were lodged whenever the process was returned to the clerk they were timeously lodged, in other words, that the 48 hours which are allowed in practice run not from signature and completion of the report but from the time when it is lodged in process. It is mainly in regard to this point that I report the case.

No time within which objections must be lodged is fixed by Statute or Act of Sederunt applicable to the Court of Session as is done in the Act of Sederunt of 10th July 1839, section 109, as to procedure in the Sheriff-Courts, by which only 48 hours from the completion of taxation are allowed. The words of the Act of Sederunt of 10th July 1839 are—‘It shall be competent for either party, within 48 hours after an account has been taxed, to lodge a note of specific objections to such taxation which the Sheriff shall dispose of with or without answers as he shall see cause. No reclaiming petition shall be competent against any interlocutor regarding the taxation or modification of expenses; nor shall any appeal be competent against any such interlocutor unless lodged within 48 hours from its date.’

By the Act of Sederunt of 6th February 1806 the Auditor of the Court of Session, who was then for the first time appointed, was directed to examine and tax the account, and report thereon to the Court or the Lord Ordinary; and it was further enacted that ‘in case either party means to object to the report of the Auditor he shall immediately lodge with the clerk a note of his objections.’

By the Act of Sederunt 11th July 1828, section 69, it was provided that ‘after the account is taxed, the agent’—that is, the agent for the party found entitled to expenses—‘shall be entitled to get back the process in order to return the same to the clerk.’

No decision precisely in point has been cited to me. In the case of Adamson & Gulland v. Gardner, July 4, 1878, 15 S.L.R. 664, the late Lord President Inglis in his opinion spoke of the 48 hours allowed in practice as running from the time when the Auditor's report was lodged with the Clerk of Court. His Lordship's words are, ‘In ordinary cases objections cannot be received more than 48 hours after the process has been returned from the Auditor.’

The only other case referred to was the recent case of Stewart & Company v. Johnstone, June 17, 1893, 20 R. 832, decided by the First Division of the Court. The argument proceeded on the assumption that according to custom the note of objections must in general be lodged within 48 hours. But the question here raised did not purely arise, because the note of objections was not lodged until a month after the taxation of the account, and probably long after the report was lodged.

A considerable sum depends upon these objections, and as it is of some importance to remove doubt on the point of practice, I feel justified in reporting the matter to the Court.”

Argued for defender—An Act of Sederunt was not to be construed so strictly as an Act of Parliament. The A.S. did not prescribe any time, and even if 48 hours were the proper time, it was not fixed from what time the 48 hours were to run. It was reasonable to make them run from the returning of the process. There had been no undue delay, and the Court might well allow the objections to be received.

Argued for the pursuer—The cases referred to by the Lord Ordinary had interpreted the “immediately” of the A.S. as meaning 48 hours. The issuing of the report by the Auditor was the proper time from which the 48 hours should run, otherwise the objector, if as here the person holding the process, could take any time he pleased to consider the propriety of lodging objections by delay in returning the process to the Clerk. In this case between a husband and Wife there would be no hardship in giving effect to the strict rule of 48 hours from the issuing of the report.

At advising—