Scottish Court of Session Decisions

Subject_1Process
Subject_2Expenses
Subject_3Approval of Auditor's Report
Subject_4Entail — Petition to Uplift and Apply Consigned Money — Lands Clauses Consolidation Act (8 Vict. cap. 19), secs. 71 and 79.
Facts:

In this petition to uplift and apply money which had been consigned in bank by the respondents, the Caledonian Railway Company, in terms of the Lands Clauses Consolidation Act, sec. 71, as being the value of lands acquired by them for the purposes of their undertaking, the respondents, the Railway Company, were found liable in the petitioner's expenses, according to the ordinary practice under sec. 79 of the said Act. After taxation by the Auditor of Court they tendered payment of the taxed amount to the petitioner's agents, under deduction of the expense of approval of the Auditor's report and motion for decree in terms thereof, which had not been incurred. The petitioner's agents declined to accept the amount tendered unless they were paid in addition a fee of 6s. 8d. for trouble at settlement and for accepting payment without moving the approval of the Auditor's report. The petitioner now moved for approval of the Auditor's report and for decree for the taxed expenses. The respondents objected to decree going out for more than the amount tendered, on the authority of Allan v. Allan's Trustees, July 1, 1851, 13 D. 1270, and other cases not reported. It was maintained for the petitioner that an agent is entitled to the fee of 6s. 8d. referred to if he accept payment without obtaining approval by the Court of the Auditor's report, and that the rejection of the respondents' tender was therefore justifiable. The Lord Ordinary decided against the petitioner's contention, and pronounced the following interlocutor:—“The Lord Ordinary approves of the Auditor's report on the petitioner's account of expenses, and decerns for payment to him by the Caledonian Railway Company (respondents) of the sum of £24, 6s. 6d., being the amount of said expenses incurred and tendered by the respondents previous to the petitioner's enrolment for decree.”