Scottish Court of Session Decisions

This was an accounting which related to the accounts of the defender's management of a farm which had been tenanted by the deceased father of the parties, and which, it had been previously held, was to be dealt with as a joint concern. The defender had maintained that he had been in the management and possession of the farm for his own behoof, in respect of a transaction with the pursuers, but it was ultimately held that he did not possess on that footing, and that he had to account for his intromissions to the pursuers. The case came up again before the Lord Ordinary ( Barcaple) with an additional report by the accountant, and a plea by the defender that he was entitled to charge a certain sum annually, as remuneration

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for his services in the management of the farm.

The Lord Ordinary pronounced the following interlocutor:

“ Edinburgh, 12 th June 1869.—The Lord Ordinary having resumed consideration of the process, with the additional report of the accountant, and heard counsel for the parties thereon—Repels the respondents' eleventh objection to the first report of the accountant in so far as regards tire question as to the expense of the advocator's riding-horse, said objection having been formerly repelled quoad ultra: Finds that the farm of West Newton having been carried on as a partnership concern by and for behoof of the advocator and respondents and their brother James Anderson, the advocator, being one of said partners, is not entitled to any allowance or remuneration for superintending and managing said farm, and repels the seventh objection stated for him to the first report of the accountant: Finds, in terms of the reports of the accountant and the foregoing findings, that there was a balance on his intromissions, including interest due by the advocator to the said partnership or joint concern, at 15th May 1861, amounting to £1451, 18s. 3d., one-fourth part of which sum is due to each of the respondents; Appoints the respondents to give in a state shewing the portion of said sum for which they ask decree under the conclusions of the action: Finds the advocator liable in the whole expenses of process in the Inferior Court and in this Court to the 12th March 1867; and quoad ultra, Finds no expenses due to or by either party; Allows accounts thereof to be given in, and, when lodged, remits the same to the auditor to tax and report.

“ Note.—The Lord Ordinary feels that, in the peculiar circumstances of this case there is some hardship in the application of the rule of law by which the advocator is precluded from claiming remuneration for his services in carrying on the joint concern belonging to a partnership of which he is a member. But the principle is well established, and has been strictly enforced in cases not materially different from the present— Campbell, Rivera & Co. v. Beath, 2 W. & S., 25. As the advocator is not allowed any remuneration, the objection taken by the respondents to half of the sum allowed by the accountant for expense of a riding-horse is repelled.

The result of the findings on these points is that the sum reported in the additional report by the accountant is the balance against the advocator at 15th May 1861, to which period he produced his accounts, and they have been dealt with on the reports of the accountant and the interlocutor of the Lord Ordinary and the Court. But the conclusions of the summons only relate to the balance due at the date of the action, and the respondents will now lodge a state shewing for what sum they ask decree as at that date. It was stated at the bar that the advocator will settle with them for the subsequent period, in conformity with the findings now pronounced.

The advocator is clearly liable in full expenses to the date of the first remit to the accountant. He was till that time disputing all liability to account. In the proceedings before the accountant under the first remit both were maintaining points which have been ultimately held untenable. The respondents were doing so with much keenness and to a large extent. But upon the whole matter, the balance of success was much in favour of the respondents. In the discussion of the accountant's first report (when the respondents persisted in reclaiming, and unsuccessfully opposed the motion of the advocator for leave to withdraw his reclaiming note) and in the procedure following on the second remit, the respondents have succeeded in increasing the amount at the advocator's debit by the sum of £130, 19s., half of which is due to them, and in resisting the advocator's claim for an allowance for management. But during this period, besides maintaining many minor objections which have been repelled, they contended at the debate on the first report, as they had previously done before the accountant, that no item of credit was to be allowed to the advocator for which there was not a voucher; and they also maintained, and got a special remit to the accountant and Mr Dickson on the point, that he ought to be debited with profits on buying, selling, and feeding cattle in addition to the value put upon the produce of the farm. On both of these important points the respondents have been unsuccessful. The parties have latterly been engaged in a partnership accounting in which the advocator has not been dealt with as a factor or manager bound to render an account of his intromissions, but entitled to remuneration for his trouble. Ill the circumstances, and without any fault of the advocator, some expense might well have been incurred by the joint concern on getting the partnership account properly stated. The actual expense has been greatly increased by the advocator having failed to keep, after 1850, such a record of his transactions as he had previously done, and by the untenable contentions of both parties. The Lord Ordinary has no doubt that a considerable portion of the expense of the accounting must be thrown upon the advocator. But he thinks that, upon the whole matter, substantial justice is done to all parties by giving the respondents their full expenses to the date of the Lord Ordinary's interlocutor disposing of the objection of both parties to the first report of the accountant, and finding no other expenses due to either party.”

The defender reclaimed

Solicitor-General and Balfour for him.

Watson and H. Smith in answer.