Scottish Court of Session Decisions

On the 8th February 1902 Messrs James Ogilvy & Company, oil and colour manufacturers, Clayhills, Aberdeen, received a notice from Charles Gale, Accountant, Glasgow, the liquidator of the Star Fire and Burglary Insurance Company, Limited, a company incorporated under the Companies Acts 1862–1893, having its registered office at 248 West George Street, Glasgow, and in course of being wound up under the supervision of the Court. The notice called upon them to pay a call of £1 said to be due by them as members of the company. They denied that they were members of the company, and repudiated all liability. After prolonged negotiations, in the course of which it was considered necessary to prepare and print a petition for the rectification of the register, leave to proceed therewith being obtained from the Lord Ordinary (Stormonth Darling) upon the 21st February 1903, the law-agents for the liquidator wrote to the law-agents for Messrs Ogilvy & Company that the liquidator had removed their name from the register of members of the company, that he was to take no proceedings whatever against them, and that when a note was being presented about some other matter a conclusion would be added asking the Lord Ordinary's approval of the deletion of their name.

Messrs Ogilvy & Company presented a note to the Lord Ordinary in which they asked him to find “the said Star Fire and Burglary Insurance Company, Limited,

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and the said Charles Gale, liable to the compearers in the expenses incurred by them in consequence of the said Charles Gale having settled their name on the list of contributories of the said company.”

Answers were lodged to this note by the company and the liquidator, but on 3rd June 1903 they were found liable in such expenses.

The interlocutor giving decree, of date 29th January 1904, was as follows:—“Approves of the Auditor's report dated 21st October 1903, on the account of expenses for the compearers James Ogilvie & Company, and decerns against the company the Star Fire and Burglary Insurance Company, Limited, and the liquidator, for payment to the said compearers of the sum of £43, 3s. 3d., the taxed amount thereof; Finds the said compearers entitled to the expenses of the objections to the Auditor's first report: Modifies the same to the sum of £2s. 2s., for which sum also decerns against the said company and the liquidator: On the compearers' motion that the liquidator should forthwith pay the sum above decerned for out of the assets of the company, appoints the liquidator within one week from the date hereof to state what assets of the company he has recovered and has in his hands.”

And on 5th February the Lord Ordinary pronounced this interlocutor—“Having heard counsel on the motion of the liquidator that the time allowed him to state what assets of the company he has recovered and has in his hands be extended, Refuses the said motion, and without prejudice to the decerniture against the liquidator personally, Ordains the liquidator to hand and pay over out of the assets of the company to the agents of Messrs Ogilvie, within one week from the date hereof, the expenses decerned for in the preceding interlocutor, and interest thereon, and decerns.”

The company and liquidator reclaimed. On the reclaiming-note appearing in the Single Bills objection was taken to its competency.

Counsel for the respondents argued that the interlocutor reclaimed was in its nature executorial, and fell under the rule established by the case of Stirling Maxwell's Trustees, 11 R. 1, 21 S.L.R. 1.

Counsel for the reclaimers argued that the interlocutor reclaimed against was not executorial but substantive, and did not fall under the rule of Stirling Maxwell's Trustees. It was not a mere finding of expenses, but a decree ad factum prœstandum.