Scottish Court of Session Decisions

I am therefore of opinion that we must remit to the Auditor to disallow all the charges except those by which Mr Burness has been out of pocket.

Lord Deas—I had some hope that the charges here would fall under an exception. We were referred to the case of. Scott v. Handyside's Trustees, in which I made a reference to the case of Findlay's Trustees and to Lord Colonsay's note in that case. The effect of that was said to be, that while a party in the position of judicial factor or trustee was excluded from making ordinary law charges against the estate under his charge, an exception was allowed in the case of process business. That question was not at issue in Scott's case. It was a very troublesome case to decide, as the whole papers required to be examined in order to see whether the party making objection to the charges was barred from doing so. What is said there about process business is merely incidental. It takes a very careful examination of Lord Gray's case in order to discover that process business was included in the accounts there. I have examined the accounts, and I see that process business was comprehended in several of them. It is impossible after the decision of the whole Court in that case to say there is any such exception, and accordingly I am of the same opinion as your Lordship.

Lord Mure—The principle of Lord Gray's case applies here. The rule laid down there and in the two English cases quoted in the Lord Justice-Clerk's opinion in that case must be applied to the case before us, although I must say I regret it in the circumstances of this case.

Lord Shand—I am, like all your Lordships, quite satisfied that in this case all the expenses charged by the firm to which Mr Burness belongs were necessarily and properly incurred; for Mr Burness, who was judicial factor on the estate, only did his duty in defending the fund against the claim that was made for its division. But at the same time the Court has no choice but to apply the broad rule that was laid down in the case referred to by your Lordships in the full consciousness that it might in some case press hardly. The principle of that rule is directly applicable, viz., that one holding the office of factor and occupying therefore a position of trust cannot receive any remuneration for his services as law agent.