Scottish Court of Session Decisions

Reservation of opinion by Lord Cowan and Lord Neaves on the general question of the right of commissioners in a sequestration to litigate in defence of their judgment.

In this case the appellant complained of a deliverance of the respondents as commissioners in a sequestration in which he (the appellant) was trustee, fixing his commission at a certain sum. That deliverance was as follows “The commissioners fixed the trustee's commission at three per centum on the sum of £2633, 18s. 3d., being the proceeds of the bankrupt's stock in trade, and five per cent upon £321, 6s. 5d., being the balance of the sum recovered by him, and authorised him to take credit for such commission in his accounts with the estate.”

The Lord Ordinary ( Ormidale), on the report of the accountant in bankruptcy, sustained the appeal, and fixed the commission at a sum considerably beyond that allowed by the respondents. He also found the respondents personally liable in modified expenses to the appellant. His Lordship added the fallowing note:—“The Lord Ordinary does not see that he is entitled under this appeal to deal with the charges in the law-agent's account of expenses referred to in the accountant's report; but as the law-agent expresses his willingness to deduct the items referred to, there can be no difficulty in arranging this extra judicially.

“In regard to the amount of the trustee's commission, the Lord Ordinary has had some difficulty. On the one hand, he has felt that this, being a matter peculiarly for the consideration of the commissioners, their determination ought not to be interfered with on light grounds. But, on the other hand, a remit having been made by a former Lord Ordinary to the accountant in bankruptcy, and the whole matter having been very carefully and minutely investigated by him, the Lord Ordinary has found it impossible to resist the conclusions at which he has arrived.

“Looking at all the circumstances, and as the appellant has not been wholly successful, the Lord Ordinary has only found him entitled to expenses subject to modification, which, however, he does not think ought to be much.”

The respondents reclaimed against this finding of expenses.

D.-F. Gordon and Duncan for reclaimers.

Gifford and Campbell Smith in answer.

The Court ordered the accounts of both parties to be put in, and to-day they found that up to the date of the accountant's report the expenses of both parties should come out of the estate; but, quoad ultra, they adhered to the Lord Ordinary's interlocutor, and, with regard to the Inner House expenses, they found that each party must bear his own.