JAMES SHEDDAN v WILLIAM SHARP (Court of Session)

Lord Corehouse, to whom the advocation was presented, without advocating the brieves, remitted the advocation to the junior Lord Ordinary, Lord Moncreiff, who pronounced this interlocutor: ‘In respect the counsel for the advocator states that his client has given up the case, advocates the brief of the respondent; finds him entitled to expenses.’

Sheddan presented a reclaiming note, upon which he pleaded —1st, That the interlocutor of the Lord Ordinary was irregular, and not in terms of the statute, in respect his Lordship remitted to the junior Lord Ordinary without first advocating the brieves. 2d, As the statute gives no authority to the Lord Ordinary to find expenses, the interlocutor by Lord Moncreiff, finding the advocator liable in expenses, was not authorised.

The Judges expressed an unanimous opinion, that the Lord Ordinary had in this case the same power to award expenses as in any other case, and that, wherever a judge had jurisdiction to try the merits of a case, he had a common law power to decide the question of expenses.

Upon this opinion regarding expenses being expressed, the advocator waived the other point, and the Court adhered, (14 February 1832.)

Lord President .—A depending process is not necessary to entitle a party to apply to have aged witnesses examined, their evidence to lie in retentis. This is often done, even upon a libelled summons; but when the summons is called, and the defender does not appear, could he be liable in these expenses? It is a measure that a party takes upon his own responsibility, and for his own safety, in case the process should go on; but it does not follow that he shall be entitled to these expenses against his opponent if the action does not go on, and the evidence of these witnesses should be of no use.