Scottish Court of Session Decisions

Circumstances in which neither party allowed expenses in Sheriff-Court.

Mr Ferrier was for some years agent for the trustees of the late Mr Alexander Connell. Mr James Connell, the respondent in this advocation, is the sole surviving trustee; and having transferred the agency of the trust to Messrs J. & J. Milligan, S.S.C., towards the end of 1864, requested Mr Ferrier to send in his account and vouchers and the various documents belonging to the trust. But Mr Ferrier refused to deliver the latter till he received payment of his account. After much correspondence, however, he agreed to give up the documents on receiving payment of his account as taxed; and to this the respondent consented. But in the meantime an account had grown up for correspondence, duplicates, inventories, &c., in all amounting to £6, 6s. 7d., as between Mr Ferrier and Messrs Milligan, as the respondent's agents; and he insisted on payment of this account, ns taxed, before delivery of the writs asked for. The respondent refused to agree to this; and on 31st May 1867 presented a petition to the Sheriff to have Mr Ferrier ordained to make the delivery requested. On 28th June he consigned the £6, 6s. 7d. in the hands of the Clerk of Court; and in respect of this consignation the Sheriff-Substitute ( Hallard) ordained Mr Ferrier to deliver up the whole documents craved for, and appointed his whole accounts to be laid before the auditor of the Court of Session for taxation. On appeal the Sheriff altered this interlocutor by restricting the accounts to be laid before the auditor to the amount for £6, 6s. 7d. Mr Connell brought an action of count and reckoning in the Sheriff-Court against Mr Ferrier; and on 29th April 1868 the Sheriff sisted procedure in the petition till this action should be settled. Thereafter he ordered payment to Mr Ferrier of £5,8s. 3d., being the balance of the account as taxed; but found the petitioner entitled to expenses. These were taxed at £20; and on 22d July 1868 the Sheriff decerned against Mr Ferrier for payment of a modified sum of £15 of expenses.

Mr Ferrier advocated the cause, on the ground that he should not have been found liable in expenses. The Lord Ordinary ( Jerviswoode) affirmed the Sheriff's interlocutor. The advocator reclaimed.

J. C. Smith, for him, argued—The granting of expenses by the Sheriff is inconsistent with his judgment. Mr Ferrier should get his expenses; or, at least, not have to pay the respondent's.

Gifford and M'Kie for the respondent.

The Court reversed the Lord Ordinary's interlocutor, holding no expenses were due by the advocator in the Sheriff-Court, and that the advocator's accounts to the trust could not be taxed on a petition; and gave the advocator the expenses of the advocation.