Scottish Court of Session Decisions

This was a suspension by John B. Ross, writer, Girvan, and John Dick, gamekeeper, Dush Lodge, as trustees of Robert Dick, sometime innkeeper in Dailly, of a charge under letters of horning at the instance of Robert Hannah, merchant, Girvan, and proceeding upon a bond and disposition in security granted by the complainers as trustees aforesaid. The complainers were trustees under a trust-disposition, executed by the said Robert Dick in June 1850, which trust-disposition was for behoof of the truster's creditors, and which gave the trustees full power to borrow money for certain purposes therein stated. In accordance with these powers, the complainers, in January 1851, borrowed £320, granting therefor, expressly in their characters as trustees, a heritable bond and disposition in security in the usual form in favour of the lender. This bond was subsequently acquired by the present respondent by assignation from the original creditor. The complainers duly paid interest on the said bond till May 1862, from which time, in consequence of failure of trust-funds, with a slight exception, they have paid nothing. The charger being desirous of recovering the principal sum and interest due under the bond, raised letters of horning against the complainers, against the charge following on which the present suspension was raised, the complainers pleading that they had no trust-funds in their hands. The note was passed without caution, in consequence of the charger having indicated an intention of proceeding against the complainers as individuals, and as being personally liable for the said debt, on the authority of Gordon v. Campbell, 1 Bell's App., p. 428. In consequence of the complainers' plea that they had no trust-funds in their hands, the Lord Ordinary ordered them to give in a state showing the position of the trust-funds in their hands at the date of the charge, a course followed in White v. Wilson, 2d March 1843, 5 D., 763. The complainers in their state brought out a balance in their favour, but the charger having stated that there were, ex facie of the state, entries the incorrectness of which could be instantly proved, the Lord Ordinary allowed objections for the charger to be lodged. Upon a consideration of the note, state, and objections, the Lord Ordinary sustained the 1st, 2d, 6th, and 7th objections for the charger, and in consequence thereof found that the complainers had in their hands £120, 10s. 8d. of trust-funds available pro tanto in payment of the bond charged on, and to that extent repelled the reasons of suspension, and found the letters orderly proceeded. But, in consequence of the charger having indicated an intention of proceeding against the complainers as individuals, and only departing from such intention when the case came into Court, found the complainers liable in modified expenses only. The objections for the charger, which the Lord Ordinary repelled, were, he stated, of such a nature as not to be relevant for enquiry, except in a general accounting.

The complainers reclaimed.

Crichton, for them, argued that a suspension

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being a summary precess was not a process of such a nature as to afford room for such an accounting as was necessary in this case, and consequently the charge should be suspended, leaving it to the charger to bring a count and reckoning or such other process as would allow him into an accounting.

Millar, Q.C., and Trayner, for the respondent, were not called upon.

At advising—