Scottish Court of Session Decisions

David Stewart, solicitor, Dundee, sole surviving trustee acting under a mutual trust-disposition and settlement granted by John Davidson, formerly mason in Lochee, and Janet Peat or Davidson, formerly his wife, dated 23rd October 1871, brought an action against John Davidson Cooper, Otago, New Zealand, and Isabella Stewart or Simmons, Lochee, and her husband as her administrator-in-law and as guardian of his pupil children, concluding for declarator that the pursuer and his co-trustees, now deceased, had fully accounted for his whole intromissions, and for a discharge for himself and his co-trustees upon his granting a valid and sufficient conveyance of certain heritable property in favour of the defenders for their respective rights of fee and liferent.

The defender Cooper did not enter appearance, and decree in absence was pronounced against him.

On 19th March 1896 the Lord Ordinary ( Low) pronounced the following interlocutor—“The Lord Ordinary having considered the cause decerns against the defender Mrs Simmons for payment to the pursuer of the sum of £6, 4s., being the balance brought out as due by her in the note annexed to the accountant's report No. 88 of process, and on said sum being paid appoints the clerk of the process to deliver up to Mrs Simmons the disposition No. of process, executed by the pursuer in conformity with the interlocutor of 4th February last, and on said delivery being made, discharges the pursuer of the office of trustee referred to on record, and also exoners and discharges the pursuer and his co-trustees conform to the conclusions of the summons thereanent: And after hearing counsel on the question of expenses, finds the pursuer entitled to expenses subject to modification to the extent of one-half of the taxed amount thereof: Allows an account,” &c.

Against this interlocutor the pursuer reclaimed.

On 5th June the Court pronounced the following interlocutor—“Recal the interlocutor reclaimed against, and decern against the defender Mrs Simmons for payment to the pursuer of the sum of £6, 14s. sterling, being the balance due as per note to the Accountant's report No. 88 of process: Further, find the pursuer entitled to expenses in the Outer House, subject to modification to the extent of one-half of the taxed amount thereof, as also to the whole expenses of his reclaiming-note, and on said sum of £6, 4s. sterling and the said expenses being paid to the pursuer, appoint the clerk of the process to deliver to Mrs Simmons the disposition No. of process, duly executed, and thereafter discharge the pursuer and his co-trustees in terms of the conclusions of the action, and decern: Remit the said accounts of expenses to the Auditor to tax and to report.”

The Auditor taxed the expenses as between party and party, but also stated what in his opinion would be the proper

Page: 749↓

sum if the account were taxed as between agent and client.

The pursuer lodged a note of objections to the Auditor's report, and claimed expenses as between agent and client.

Argued for the pursuer—The Court were entitled to construe the finding of expenses in their interlocutor— Henderson's Trustees v. Tulloch, February 4, 1834, 12 8. 399. Upon payment of the expenses found due by the Court, the trustee would be denuded of the whole estate, so that if he only got expenses as between party and party he would have to bear all his extra-judicial expenses himself. The presumption, on the other hand, was that he was entitled to be kept indemnis, and it was to be presumed that this was what the Court intended. He was therefore entitled to expenses as between agent and client.

Argued for the defenders—It was too late now to move for expenses as between agent and client, the Court having made the ordinary finding as to expenses, which, apart from something appearing in the interlocutor to the contrary, meant expenses as between party and party— Fletcher's Trustees v. Fletcher, July 7, 1888, 15 R. 862. That case ruled the present. It would be most unjust to grant the motion, as it was impossible that the whole circumstances could be before the Court now. This was not a case in which the trustee was entitled to be kept indemnis, as appeared from the Lord Ordinary's interlocutor by which he was only found entitled to half his expenses. Any presumption which there might be in the ordinary case for interpreting a finding of expenses in favour of a trustee to mean expenses as between agent and client was rebutted in this case.