Scottish Court of Session Decisions

On 18th November 1892 the estates of the late John Clark, farmer, Craiglands, Cromarty, were sequestrated by the Lord Ordinary on the Bills, and on 26th November Mr Hector Rose Mackenzie, Solicitor, Inverness, was appointed trustee on the sequestrated estates.

Mr Mackenzie, as trustee, for the purpose of recovering certain sums due to the estate, raised actions in the Court of Session which were authorised by the majority of a meeting of creditors, against (1st) Mr John A. Fowler, and (2nd) Mrs Louisa Campbell Mackay or Fowler and another.

On 30th January 1896 the Lord Ordinary ( Moncreiff) pronounced interlocutors in both causes, by which he decerned against the defenders for payment of certain sums, and found the pursuer entitled to expenses.

On 23rd May the defenders in both actions reclaimed.

On the 29th May, the pursuer having left the country, a meeting of creditors was held at which it was resolved that he should be removed from the office of trustee, and at a subsequent meeting Mr David Ross, Solicitor, Inverness, was appointed in his place, which appointment was duly confirmed by the Sheriff.

On 20th June 1896 the First Division, on the motion of the defenders, with consent of the pursuer, sisted procedure in the two actions, in order that the new trustee might have an opportunity of sisting himself as a party to the actions. Mr Ross, the new trustee, presented a report to the creditors in which he declined to sist himself in the actions unless the creditors guaranteed him against personal responsibility.

A note was presented to the Court by Mr Mackenzie in both actions, in which, after narrating the above facts, he maintained that “as an individual he still had

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an interest in the actions to have the interlocutor of the Lord Ordinary affirmed in so far as it finds him entitled to the expenses therein decerned for, and also to have the defenders' claim for expenses against him disposed of by the Court.” He stated that being furth of Scotland he had appointed Mr John Alexander Robertson as his mandatory in the case. He accordingly craved the Court “to sist him as an individual as a pursuer in the action; to sist the Said John Alexander Robertson as his mandatory therein; to recal the foresaid sist, and to restore the cause to the roll for discussion.”

Answers were lodged by the defenders in both actions, in which they maintained that “upon his removal from the trusteeship” the pursuer “ceased to have any title or interest as a party to the present action, which was carried on by him solely in his capacity as such trustee.” They accordingly submitted that the note was incompetent.

They argued that the Court would not allow the merits of a case to be discussed solely for the purpose of getting at the question of expenses, except in the case of a law-agent— Gordon v. Gordon, December 11, 1823, 2 S. 493.