Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of Edinburgh. Miss Margaret Johnston held a bond and disposition in security, granted by Alexander Gordon Smith, over certain subjects in Edinburgh. Smith was afterwards sequestrated, and Mr Budge, C.A., appointed trustee on his estate. Miss Johnston raised a summons of maills and duties, in which she called as defenders the tenants and occupants of the subjects, and also Mr Budge, as trustee. The pursuer concluded for expenses against Mr Budge as trustee, and against the other defenders if they should appear to oppose. Mr Budge appeared, and objected to the conclusions in so far as expenses were craved against him as trustee. No appearance being made for the other defenders, the Sheriff-Substitute ( Campbell) decerned in terms of the conclusions, except as to the conclusion for expenses against Budge, and found the latter entitled to the expenses of his appearance.

Miss Johnston appealed, but the Sheriff ( Davidson) adhered, with additional expenses, and added the following note:—

“Note—The only conclusion against the de-fender Mr Budge, as trustee on the sequestrated estate of Smith, is that he be found liable in expenses. A distinction is taken between him and the other defenders, who are the tenants of the subjects covered by the bond. Expenses are asked against the tenants only if they appear as defenders. Expenses are concluded for against the trustee whether he appears or not. He does appear only to defend himself against this demand; and if he is not liable to pay the pursuer's expenses, he was entitled and bound so to defend himself.

The pursuer has not been able to adduce any authority or practice for her demand. Her contention is, that as, if there had been no sequestration, and the debtor in the bond himself had been called, he would have been bound to pay the expenses of this decree, so he, being sequestrated, the trustee on his estate stands exactly in his place, and is equally bound to pay these expenses. But the trustee is not exactly in the position of the debtor. He has, no doubt, as trustee to regard the interests of the bankrupt, but he is trustee for his creditors, and the estate is vested in him for their benefit. The estate in the trustee, so far as heritable, is qualified and limited by all preferable securities existing at the date of the sequestration not null and reducible, and subject to an action such as the present. While the pursuer after sequestration is entitled to have such a decree as this, the statute which gives that right and limits its extent, does not provide that the trustee or the other creditors are to pay the expenses of obtaining it.

The trustee has not disputed and has in no way interfered with the rights of the pursuer, and was not entitled to do so. It may be doubtful if anything more was required than an intimation of the action to the trustee, without his being called as a party. Be that as it may, he is not bound to pay the pursuer's expenses.

Whether the pursuer, in virtue of the obligations in the bond, is entitled to be ranked as a creditor for the expense of getting her decree, is not now for consideration.

If the trustee was entitled to appear and defend on the ground he did, and is right in his contention, he is entitled to his expenses.”

Miss Johnston appealed to the Court of Session

The Solicitor-General and Watson for her.

Scott and Strachan for Mr Budge.