LEARMONTH v MORTON (Court of Session)

The Lord Ordinary having repelled a preliminary objection to the competency of an advocation, and found the respondent liable in expenses, in respect he had intimated his intention of submitting the interlocutor to review, a reclaiming note was presented to the Court; and their Lordships (17th Jan. 1829) after hearing counsel, adhered to the interlocutor complained of, and remitted to the Lord Ordinary to remit the cause to the Jury Court; but there was no finding in their interlocutor as to expenses.

The auditor having refused to allow the expenses incurred in the Inner-House, the advocator objected to his report on that ground; and the Lord Ordinary, in respect of the alleged practice, sustained the objection, and found the advocator entitled to the additional expenses.

The advocator objected to the competency of the reclaiming note, in respect that it was expressly declared, by the act of sederunt 6th February 1806, that the interlocutor of the Lord Ordinary sustaining or repelling an objection to the auditor's report should be final, and that this provision of the act of sederunt had never been altered.

On the merits he maintained, that, according to the invariable practice of the Court in ordinary cases, a simple adherence to a Lord Ordinary's interlocutor finding expenses due was held to carry the additional expenses incurred in the Inner-House, without any express finding in regard to them; and that the enactment in the 5th section of the Judicature Act was not intended to introduce any alteration on the former established practice as to the disposal of expenses of preliminary discussions.

The Court , however, ‘in respect there was no finding of the Court relative to the additional expenses in question, altered the interlocutor of the Lord Ordinary, and repelled the objection.’