Scottish Court of Session Decisions

This was an action of count and reckoning raised in 1823 at the instance of Ferrier, trustee on the sequestrated estates of the Scotch Cooperage Company, and of the individual partners, against Berry, who had been the trustee originally elected, but had resigned in 1820. A remit had been made to an accountant, to whose report objections were lodged by both parties. The principal objections were on the part of Ferrier, and depended on whether Berry had, by the course of his conduct, subjected himself to the penalty of being refused credit for certain sums expended by him in managing the estate, and having his claim for commission disallowed. This part of the case, however, depended on special circumstances, which the Court considered not to be such as to warrant subjecting Berry to this responsibility.

Another point related to a claim to have Berry found liable in penal interest for certain proceeds of the individual estate of one of the partners, which had not been deposited by him in bank. It appeared, however, that these had not been retained in his own hands, but had been employed in defraying the expenses incurred in the management of the company estate, and that there were no creditors on the individual estate separate from the company creditors; and Berry contended that penal interest could only be imposed in respect of money retained by a trustee in his own hands, or applied to his own purposes.