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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Martin & Co. v. Hunter [1897] ScotLR 35_131 (25 November 1897)
URL: http://www.bailii.org/scot/cases/ScotCS/1897/35SLR0131.html
Cite as: [1897] SLR 35_131, [1897] ScotLR 35_131

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SCOTTISH_SLR_Court_of_Session

Page: 131↓

Court of Session Inner House First Division.

Thursday, November 25. 1897.

[ Lord Pearson, Ordinary.

35 SLR 131

Martin & Company

v.

Hunter.

Subject_1Expenses
Subject_2Trustee in Sequestration
Subject_3Watching Fees
Subject_4Precognitions.
Facts:

Held that a trustee in a sequestration who is allowed watching fees in a petition for recal of the sequestration, is not entitled to the expenses of taking precognitions on his own account.

Headnote:

A petition was presented on 17th April 1897 by Mr Thomas Hunter, grocer, Lasswade, with the concurrence of Mr Ormiston, a creditor, for sequestration of Mr Hunter's estates. A deliverance was pronounced by the Sheriff granting sequestration in terms of the prayer of the petition, and at a meeting of creditors, held thereafter, Mr Charles Romanes was appointed trustee in the sequestration.

A petition was presented by Messrs Martin … Company, wine merchants, Leith, who were creditors of Mr Hunter, craving the Court to recal the sequestration on the ground that the affidavit of the concurring creditor did not comply with the statutory requisites.

After a proof the Lord Ordinary ( Pearson) on 17th July 1897 refused the prayer of the petition, and found the petitioners liable to the trustee “for the expenses incurred by him in watching the case on behalf of the estate, and of attending the proof.”

The petitioners reclaimed, and the Court adhered to the Lord Ordinary's interlocutor.

The reclaimers objected to the Auditor's report on the trustee's account of expenses, inter alia, in respect that he failed to tax off the expenses of “framing precognitions” amounting to £3, 6s. They maintained that these were not truly expenses of watching the case.

 Judgment:

Lord President—This is a very small matter, but it is perfectly clear that when we allow watching fees we allow what is necessary to enable a trustee to be present at every stage, and to consider whether overt intervention is necessary. Accordingly I think that all the objections barring the first are bad. With regard to the first, I cannot see that the trustee is under the necessity of framing precognitions on his own account. Under the statute he has full opportunity for obtaining information from individuals associated with the affairs of the bankrupt, and has no occasion for precognitions in a case when he has merely to watch.

Lord Adam, Lord M'Laren, and Lord Kinnear concurred.

The Court sustained the objections so far as they related to the expenses of framing precognitions.

 Counsel:

Counsel for the Petitioners— T. B. Morrison. Agent— Marcus J. Brown, S.S.C.

Counsel for the Trustee— Findlay.

 1897

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URL: http://www.bailii.org/scot/cases/ScotCS/1897/35SLR0131.html