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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Macdonald's Trustees v. Munro [1866] ScotLR 2_19_1 (22 May 1866)
URL: http://www.bailii.org/scot/cases/ScotCS/1866/02SLR0019_1.html
Cite as: [1866] SLR 2_19_1, [1866] ScotLR 2_19_1
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SCOTTISH_SLR_Court_of_Session
Page: 19↓
Court of Session Inner House First Division.
v.
( et e contra ( ante, vol. i., p. 259).
Facts:
The pursuers of an action who succeeded before a jury to the extent of one-half of their claim, found entitled to expenses.
These are counter actions betwixt the trustees of the late Captain Ronald Macdonald, who resided in Portobello, and Archibald Innes Munro, who was the deceased's servant. In the one action the trustees claimed payment from Munro of £600, being the contents of four bank cheques which he had uplifted from bank for his late master and failed to account for. In the other action, Munro claimed payment from the trustees of a legacy of £100 bequeathed to him in Captain Macdonald's will, and of a sum of wages due to him.
The first action was tried before the Lord President and a jury in April. The question submitted to the jury was limited to two of the cheques which were for £200 each. They jury returned a verdict for the pursuers for £200.
In the other action the only defence insisted in by the trustee was that Munro was in possession of funds belonging to them more than sufficient to pay the legacy and wages which he claimed.
The Court to-day conjoined the actions, applied the verdict of the jury, and decerned against Munro for £200, under deduction of the sums claimed by him in the action at his own instance. In regard to expenses,
The Lord President said—Thes two cases stand in different positions. In regard to the first which I tried, I have looked at my notes of the evidence, and it appears to me that the defender Munro must be found liable in expenses. I take into consideration the whole evidence, the demand for explanations made by the trustees before the litigation commence, Munro's refusal to give them, the nature of his defence, and of the evidence by which it was supported. The defender had the means of giving the information which the trustees asked, and he should have given it. His own evidence does not seem from the result to have been at all satisfactory to the jury. In the other action the sums sued for were admittedly due, but the trustees contended that Munro was liable to them in a larger sum. In this they have proved to be right. Their action was first raised. If Munro had given an account in regard to the money drawn from bank, I think it is pretty clear that there would have been no litigation. The fair result is therefore, that in the second action neither party should be found entitled to expenses.
The other Judges concurred, and the trustees were found entitled to expenses in the action at their instance, and in the other neither party was found entitled to expenses.
Counsel for the Trustees— Mr Clark and Mr Shand. Agent— Mr J. T. Mowbray, W.S.
Counsel for Munro— Mr Gifford and Mr Deas. Agent— Mr John Robertson, S.S.C.