Scottish Court of Session Decisions

The Court having in this case dismissed the first and second declaratory conclusions in so far as directed against the defenders, the trustees of the Patterson trust and of the Cook trust and Mrs Millar, assoilzied them from the remaining conclusions of the summons and found them entitled to expenses. A question as to expenses arose in the following manner—The defenders, the Patterson trustees and the Cook trustees, gave in separate accounts of expenses, which the Auditor taxed, adding to his report the following note—“At the audit the pursuers' agents contended that these defenders and Cook's trustees ought to have had only one account as their interests were identical. The Auditor, however, thinks that the matter is one for the Court to deal with, and they having awarded expenses to all the defenders without any qualification, he feels that he has no power to restrict them to the effect contended for.”

On a motion to approve of the Auditor's report, the pursuers objected, and argued—the Patterson trustees and the Cook trustees ought to have made common cause, for the questions at issue between the pursuers and both sets of trustees were identical. This was the proper stage for raising this question— Cameron v. French, October 26, 1893, Scot. Law Times, vol. i. p. 259.

Argued for the defenders—(1) The pursuers' objection was unfounded in fact. The questions between the pursuers and the two sets of trustees were similar but not identical, and the interests of the defenders had really been conflicting. (2) In any event, the objection came too late. The invariable practice, if not the rule, of the Court was that any such objection should be made when the defenders moved for expenses— Duncan v. Salmond, March 17, 1874, 1 R. 839.