Scottish Court of Session Decisions

James Dairon and Mrs Catherine Dairon or Fleming, two of the children of the late James Dairon, raised an action for reduction of a trust-deed, which had been granted by the pursuers and their brothers Edward Dairon and David Dairon in favour of the said Edward Dairon, Andrew Dairon, another brother since deceased, and Mr John Brownlie, the family law-agent, as trustees, in which they called as defenders Edward Dairon and Mr Brownlie as trustees, and Edward Dairon and David dairon as individuals. Under the trust-deed in question the heritable property left to the trusters by their father was conveyed to the trustees in trust, and the purposes of the trust were to pay the free income of the trust-estate in equal proportions to the members of the family, and in the event of any of them dying unmarried and without issue, to the survivors. Any member of the family dying and leaving a wife or husband was empowered to give such wife or husband a liferent of his or

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her share, and children were entitled to succeed to their parents' share and to demand payment thereof.

The pursuers averred that the deed took the shape in which it was executed on the instructions of Edward and David Dairon, who were the only members of the family who had children, and that it was “part of a fraudulent scheme conceived by them in the interests of themselves and their families.” The pursuers further averred that they executed the deed under essential error.

A proof was allowed, and David Dairon, one of the defenders, who resided in British Columbia, was called and examined as a witness by the defending trustees. Thereafter the Lord Ordinary (Low) on 11th August 1899 repelled the reasons of reduction and assoilzied the defenders.

The pursuers reclaimed to the First Division, who on 22nd June 1900 refused the reclaiming-note, found the defenders entitled to additional expenses, remitted the account thereof to the Auditor, and remitted to the Lord Ordinary with power to decern for the taxed expenses.

On 6th July the Lord Ordinary found the defenders entitled to expenses so far as the same had not been already disposed of, and remitted to the Auditor to tax the accounts thereof.

The pursuers objected to the Auditor's report on the defenders' account of expenses, in respect that he failed to tax off, inter alia, the following item:—“2. David A. Dairon, plasterer, Vancouver, British Columbia, 36 days at £1, 1s.; travelling expenses between Vancouver and Montreal, £3S, 12s.; and passage money between Montreal and Glasgow, £25 (charged £101, 8s.), (taxed at £63).”

The Lord Ordinary (Low) on 20th July 1900 pronounced the following interlocutor:—“The Lord Ordinary having heard counsel for the parties on the note of objections for the pursuers to the Auditor's report on the defenders' account of expenses, taxing the same at £403, 1s. 8d., Sustains the said objections to the extent of £61, 11s. 6d., and finds that the same falls to be deducted from the said sum of £403, 1s. 8d., and leaves a sum of £341, 10s. 2d. as the amount of the defenders' said expenses,” &c.

The defenders reclaimed, and argued—By the Act of Sederunt 15th July 1876, sec. 5, sub-sec. 3, a witness coining from abroad to give evidence was entitled to his expenses. As under the Evidence Act of 1853 (16 Vict. c. 20) it was competent for the parties in a cause to give evidence, there was no reason why the provisions of the Act of Sederunt 1876 should not apply to them— Willcox & Gibbs' Sewing Machine Company v. Stirling & Sons, November 19, 1869, 7 S.L.R. 98.

Argued for the respondents—David Dairon being a party to the case must necessarily be present to defend it. He was morally bound to come and defend his character, and the fact that he happened to give evidence did not entitle him to the expense of his attendance. Till 1853 parties were not allowed to be witnesses in their own cause. The cases in which any expenses had been given were limited to those in which a defender had been examined by the pursuer as a haver, or on reference to oath of party—that is, really as the pursuer's own witness, and even in these only travelling expenses had been allowed— M'Gill v. Ferrier, December 2, 1836, 15 S. 178; Thorburn's Trustees v. Short, May 22, 1838, 16 S. 1016. The regulations of the Act of Sederunt 15th July 1876 were repeated from the Act of Sederunt 10th July 1844, which was passed before the evidence of parties was competent, so they clearly did not entitle a party giving evidence to his expenses— Rough v. Lyell, January 21, 1854, 16 D. 381. A party was not entitled to the expenses of pleading his own cause, and there was no reason why he should be entitled to those of giving evidence on his own behalf— Forbes v. Whyte, March 17, 1891, 18 R. 688. Moreover, the witness might have been examined on commission, and unnecessary expense would thus have been saved.