Scottish Court of Session Decisions

Lord President—This has been a very troublesome little case, and I am afraid there must be some hardship in our manner of deciding it.

The trustee only did his duty in bringing an action to recover sums apparently due to the trust estate, but then the defender is entitled to defend himself, and I think the trustee has not made out his claim.

The important element in the case is the account No 11 of process, which bears date 1871. The termination of the account proper shows a balance of £33, 15s. 6d. against the defender, and all the remaining entries, except the last two, are in pencil, but these last two are in ink, are in the bankrupt's writing, and prove that the account was rendered in its present shape by the bankrupt to the defender. To be sure the account, as now sued for, contains some items of later date, but these altogether make £7, 6s. 10d., and against that there is £7, 10s., which, it is admitted, must go to the defender's credit. That being the evidence of the account itself, the question is, what evidence there is to set against it. The trustee says he has made up an account from the bankrupt's books, bringing out a different result, but it is certain that there is no actual balance standing in those books of this amount, so that, so far, the account sued for must be more or less conjectural, so that I am afraid we must recal the Sheriff's interlocutor, and assoilzie the defender. As regards the question of expenses, I cannot say that the defender's conduct has been quite satisfactory. He has allowed the trustee to bring this action, which, in the absence of further information, he was bound to do, but it was quite easy for the defender to have given him such information, and so have saved all this expense. In these circumstances, while I think we must allow the defender his expenses in this Court, I am not disposed to recal that part of the Sheriff's interlocutor which gives expenses against him in the Court below.