Scottish Court of Session Decisions

Lord President—This case is before us along with an appeal against a judgment of a trustee on a sequestrated estate, by which he has rejected a claim of preference made by the appellant Mr Marshall. He has complained of that judgment, and an objection has been taken to the appeal, on the ground that while the appellant's claim was rejected, a claim by Mr Wotherspoon had been sustained, that that claim exhausted the fund, and that the judgment in regard to it had not been appealed and was now final. Mr Marshall says he has appealed the judgment which particularly concerned him, and that that is sufficient to entitle him to have it reviewed. But the trustee, who very properly appeared in the proceedings, takes the objection expressed in his first plea in law.—[Reads.] It was impossible, when that plea was stated, to have brought the judgment sustaining Mr Wotherspoon's claim under appeal, for the statutory period for doing so had elapsed. The Lord Ordinary repelled this plea, and appointed intimation to be made to Mr Wotherspoon. By dealing with the matter in that way, there would be in the field the trustee and also Mr Wotherspoon, who is said to have a special interest in the judgment he had obtained. Mr Wink has reclaimed against that interlocutor. It appeared to us that the proper course to adopt was to have intimation made to Mr Wotherspoon that he might appear if so advised, and accordingly we pronounced an order to that effect before answer. He has appeared and sisted himself, and we have heard counsel for him both on the competency of the appeal and on the merits of the question with Mr Marshall. The discussion on the merits raised a question as to the effect of an inhibition and the nature and extent of a claim of hypothec. I think the first thing we have to do is to deal with the interlocutor of the Lord Ordinary. Now, as to the first plea, we are all of opinion that the Lord Ordinary did what was right, and we are of opinion, further, that the plea is not well founded. We think the appellant did all that was absolutely incumbent upon him under the statute when he brought his own case here- If it was necessary to do more, it might sometimes be necessary to bring appeals in regard to all the creditors on an estate. That is clearly not the meaning of the statute. I think that necessarily disposes of the respondent's 2d and 3d pleas also.