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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Knox v. Young And M'Leod [1867] ScotLR 3_213 (6 February 1867) URL: http://www.bailii.org/scot/cases/ScotCS/1867/03SLR0213.html Cite as: [1867] ScotLR 3_213, [1867] SLR 3_213 |
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Page: 213↓
A pursuer of an action having been found liable in a sum of expenses, the decree for which was extracted, and having been thereafter sequestrated, the trustee on his estate sisted himself as a party to the action. Held (per Lord Ormidale and acquiesced in) that the trustee had not, by sisting, rendered himself liable for the expenses which had been decerned for.
In this case a question of fact was tried before the Lord Ordinary in regard to which the defenders were successful, and they were found entitled to expenses, which were taxed at £65, 6s. 3d. For this sum decree was pronounced on 18th July 1866 against the pursuer. This decree was extracted. But notwithstanding the settlement of this question, there were other points in the case left over for decision, and before they came to be discussed the pursuer was sequestrated. Intimation of the dependence of the process was made to the trustee, who sisted himself as pursuer. The defenders then moved that the trustee should be found liable in the expenses which had been decerned for, on the ground that by sisting himself he had become liable in all expenses, past as well as future, incurred in the action.
The Lord Ordinary (Ormidale), after hearing parties, pronounced the following interlocutor refusing the motion:—
Edinburgh, 11 th December 1866.—The Lord Ordinary having heard counsel for the parties on the motion for the defenders, that Mr Samuel Edgar Trotter, the trustee on the pursuer's sequestrated estate, sisted as a party to this action by interlocutor of the 4th instant, should be held liable, and decree given against him for the £65, 6s. 3d. decerned for against the pursuer by interlocutor of 18th July last: refuses said motion, and finds the defenders liable to Mr Trotter in the expenses incurred by him in relation to the present discussion, and modifies the same to the sum of £5, 5s., for payment of which to the said Mr Trotter decerns against the defenders.
“ R. Macfarlane.”
“ Note.—An elaborate argument was submitted to the Lord Ordinary in support of the defenders' motion, and the case of Torbet v. Borthwick, 23d February 1849, 11 D. 694, was cited as an authority in point. But in the opinion of the Lord Ordinary that case, and the principle which it illustrates, have no application to the circumstances in which the present motion has been made. It may be quite true, and taken as a settled principle, that a trustee sisted in the place of a bankrupt pursuer or defender is liable for the expenses of the process in which he is so sisted, incurred by his adversary, whether before or after the sisting, for the reason that he adopts the process, with all its risks, as regards expenses, so far as not previously determined, and nothing more was settled by the case of Torbet. That however, is quite a different thing from holding a trustee liable for a sum of expenses for which decree was pronounced and extracted, as in the present instance, before he was sisted or became connected with the process at all. It was only to the depending process that the trustee, Mr Trotter, was sisted as a party; but for the £65, 6s. 3d. in question, decree having been pronounced and extracted, and diligence admittedly done before the sisting took place, there was no longer any depending process quoad that sum. Moreover, it would be incompetent and unprecedented to give a second decree in the same process for the same sum for which decree had been already pronounced and extracted. The Lord Ordinary being therefore of opinion that the defenders' motion is untenable, as well in reference to technical form and competency as sound legal principle, has had no hesitation in refusing it, with expenses, which, in order to save the expense
Page: 214↓
R. M'F.”
This interlocutor was acquiesced in by the defenders.
Counsel for Trustee— Mr F. W. Clark. Agent— L. Mackersy, W.S.
Counsel for Defenders— Mr Pattison and Mr George M‘Ewan. Agent— William Mason, S.S.C.
