Scottish Court of Session Decisions

The late Sir George de la Poer Beresford, Bart., executed an inter vivos deed of direction and declarator of trust, dated 9th November 1870 and recorded 16th April 1881, by which he conveyed “the quarries, lands, and estate of Ballachulish in favour of the said Edward Averil Lucas, Charles Davis Lucas, Admiral Lucas, and Lady Beresford, and the acceptors and survivors, and acceptor and survivor, and such other persons as might be assumed into the trust, for the purposes following—(First) For payment of the expense of executing the trust-deed, and of managing and executing the trust; (second) in payment of the sums which might be borrowed by the trustees upon the security of the estate, and the interest which should accrue thereon.” …

In 1873 the estate was conveyed to the said trustees, who in 1879 assumed Mrs Drummond, the only child of Sir George and Lady Beresford, and the fiar of the trust-estate, to be a trustee along with them, and Admiral Lucas thereafter resigned the office of trustee. By deed of assumption, dated 26th December 1882, Ebenezer Erskine Scott, C.A., and Thomas Bennet Clark, C. A., were assumed trustees. Upon the same date the trustees, who assumed Mr Scott, resigned, and Mr Scott immediately entered upon possession and management of the trust-estate.

Sir George Beresford's trustees granted a bond and disposition in security for £10,000, dated 27th and 31st March and 8th April, and recorded 30th April 1879, in favour of the said Admiral Lucas, his heirs, executors, or assignees whomsoever, and this bond and disposition in security was in the same year by deed of assignation assigned to Admiral Lucas' marriage-contract trustees. They called up the sum in their bond and disposition in security upon 22nd November 1889, and in December 1891 they brought an action of count, reckoning, and payment against the said Ebenezer Erskine Scott and Thomas Bennet Clark, the acting trustees under Sir George Beresford's trust, to have them decerned and ordained to exhibit and produce a full and particular account of their whole intromissions as trustees under the said deed of direction and declarator of trust, whereby the true balance due by them to the pursuers might appear and be ascertained.

The defenders pleaded, inter alia—“(1) The pursuers have no title to sue.”

Upon 28th March 1892 the Lord Ordinary ( Kincairney) pronounced the following interlocutor:—“Having considered the cause, Repels the first plea-in-law for the defenders, and before further answer, and under reservation of the whole other pleas of the parties, appoints the defenders to produce an account of their intromissions as trustee or trustees under the deed of direction and declaration of trust libelled, with the vouchers thereof, by the third sederunt day of the ensuing session: Grants leave to reclaim.

“ Note.—…. The pursuers sue simply as creditors under their bond and disposition in security, and the motion made on their behalf was that the trustees should be ordered to produce the trust accounts. In support of their title to sue they referred to The Bon-Accord Company v. Souter's Trustees, June 13, 1850, 12 D. 1010, and December 11, 1850, 13 D. 295, and to M'Laren on Wills, ii. 499. The defenders did not, I think, refer to any authority in support of their plea against the pursuers' title. The case seems somewhat unusual, seeing that the pursuers are merely postponed heritable creditors, with a somewhat remote prospect of ultimate benefit, whether they make out their objections or not. But in the face of the authorities quoted by the pursuers, I am not prepared to sustain the plea against their title. I think that without the trustees' accounts I am not in a position to dispose safely of any of the other pleas.”

The defenders reclaimed.

At advising—