Scottish Court of Session Decisions

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Cite as: [1891] ScotLR 28_673, [1891] SLR 28_673

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SCOTTISH_SLR_Court_of_Session

Page: 673↓

Court of Session Inner House First Division.

Wednesday, June 3. 1891.

28 SLR 673

Watson and Others (Scott's Trustees)

v.

Aiton and Another.

Subject_1Process
Subject_2Special Case
Subject_3Court of Session Act 1868 (31 and 32 Vict. cap.100), sec.63
Subject_4Competency.
Facts:

A contract of copartnery provided that on the death of one of the partners, and in the event of the firm being employed to wind up his affairs, they should only be entitled to charge one-third of the usual professional fees and commission. The trust-deed of this partner provided for payment of any expenses incurred by the firm in terms of the partnership deed. The partner died in 1888, and prior to 28th March 1890 the firm had realised, ingathered, and invested the whole estate, and thereafter the trust subsisted for payment of certain annuities and the accumulation of the balance of income for the residuary legatee.

The trustees and the residuary legatee sought the opinion of the Court as to whether the restriction of professional fees and remuneration ceased to be operative after 28th March 1890.

The Court, on the ground that the questions submitted were hypothetical, and suited for the opinion of counsel, dismissed the special case as incompetent.

Headnote:

The deceased James Scott, law agent and banker, Stonehaven, died on 28th March 1889. He was a partner of the firm of Scott, Gardner, & Logan, the other partners being John Clanachan Gardner and David Logan.

By contract of copartnery, which was to endure for five years from June 1888, it was, inter alia, provided that “on Mr Scott's death, and in the event of Messrs
Page: 674↓
Gardner and Logan being employed to wind up his affairs, they shall only be entitled to charge one-third of the usual professional fees and commission for doing that business.”

Mr Scott left a trust-disposition and settlement by which he nominated William Watson, John Clanachan Gardner, and David Cunningham Logan, trustees for carrying out the purposes therein set forth. The trustees accepted office, and employed the firm of Scott, Gardner, & Logan as law agents in the trust. Prior to 28th March 1890 the said trustees had realised, ingathered, and nvested the whole estate. Thereafter the trust subsisted only for the following purposes—the payment of certain annuities and provisions, and the accumulation of the balance of income for behoof of the residuary legatee until he attained twenty-five years.

This special case was presented (1) by the trustees, and (2) the residuary legatee, in which the following questions were submitted for the determination of the Court:—“(1) Did the clause in the contract of copartnery, and the relative provision in the trust-disposition and settlement, as to the payment of Messrs Gardner and Logan, cease to be operative as on 28th March 1890? (2) Assuming that the said John Clanachan Gardner and David Cunningham Logan continue to act as trustees and also as law agents in the trust, will they be entitled to charge and be paid out of the funds of the trust fees and commission for work done subsequent to 28th March 1890, and if so—1st, Will they be entitled to charge and be paid full fees and commission; or2nd, Merely one-third thereof? (3) Assuming that the said John Clanachan Gardner and David Cunningham Logan resign office as trustees, and continue to act as law agents in the trust, will they be entitled to charge and be paid full fees and commission from the date of said resignation, or merely one-third thereof? (4) In the event of question No. 1 being answered in the negative, will the restriction as to fees and commission continue to be operative beyond 18th June 1893, being five years from 18th June 1888?”

After hearing argument on the competency of the Special Case.

At advising—

Judgment:

Lord President—I do not think that this is a case which we can possibly entertain under the 63rd section of the Court of Session Act, which provides that where parties are interested either personally or in some fiduciary or official character in the decision of some question of law, and are agreed upon the facts, and dispute only on the law applicable thereto, it shall be competent for them to present a special case setting forth the facts upon which they are agreed, and the question of law upon which they desire to obtain the opinion of the Court.

It is to be observed that it is not sufficient that the parties should be agreed upon the facts, but it is also essential that they should have a direct and immediate interest in the question of law.

In the present case the questions are entirely hypothetical, and are suited for the opinion of counsel and not for the decision of the Court.

Lords Adam and Kinnear concurred.

Lord M'Laren was absent.

Counsel:

Counsel for the First Party— Dickson— Abel. Agent— D. Lister Shand, W.S.

Counsel for the Second Party— M'Kechnie— Aitken. Agents— Carmichael & Miller, W.S.
1891