Scottish Court of Session Decisions

A petition was presented in May 1894 by trustees under the marriage-contract of Mr and Mrs Erentz, craving the Court to appoint a judicial factor on the marriage-contract estate, to authorise them to resign office, and to grant a discharge.

In October 1894 Mr James M'Lay (a Glasgow chartered accountant) was appointed factor, and the petitioners were allowed to resign office, which they subsequently did. Thereafter an action of count, reckoning, and payment was raised against the petitioners as individuals at the instance of the judicial factor, and the procedure in the petition was suspended pending the issue of the action. The petitioners lodged in process an account of their intromissions, and after sundry procedure the Lord Ordinary ( Kincairney) on 19th February 1897 assoilzied them from the conclusions of the action, and found them entitled to expenses.

The petitioners thereafter lodged an account of their intromissions with the trust funds in their hands, subsequent to the date of the account lodged in the action. They stated that the balance left in their hands amounted to £851, 13s. 8d., which they offered to pay over to the judicial factor on obtaining an order for discharge, which they craved the Court to grant. The judicial factor objected, inter alia, to the deduction by the petitioners of certain sums from the balance in their hands for extrajudicial expenses incurred by them in defending the action of count, reckoning and payment. The Lord Ordinary ( Kincairney) on 2nd September 1897 pronounced an interlocutor by which he found that the sum due by the petitioners to the judicial factor was £351, 13s. 8d., as set forth in their note, and in respect of payment by them of that sum discharged them in terms of the prayer of the petition.

The judicial factor reclaimed, and argued—The petitioners had been called in the action as individuals, having been allowed by the Lord Ordinary to resign office. They were in no better position than an ordinary defender; the fact that they had still funds in their hands belonging to the estate did not alter their position. In any case, the finding of expenses in the interlocutor of 19th February 1897 only implied expenses between party and party, and it was too late now to ask for extrajudicial expenses; the motion should have been made before the Lord Ordinary at the time of the action— Fletcher's Trustees v. Fletcher, July 7, 1888, 15 R. 862.