Scottish Court of Session Decisions

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Cite as: [1907] ScotLR 737, [1907] SLR 737

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SCOTTISH_SLR_Court_of_Session

Page: 737↓

Court of Session Inner House First Division.

[Single Bills.

Thursday, May 30. 1907.

44 SLR 737

Grieve's Trustees

v.

Grieve and Others.

Subject_1Expenses
Subject_2Decree in Name of Agent-Disburser
Subject_3Compensation
Subject_4Decree for Expenses Awarded by House of Lords and Payment made under the Judgment thereby Recalled.
Facts:

In a multiplepoinding brought by
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trustees, the First Division on a reclaiming note found the testator's widow entitled to the liferent of £10,000, and the trustees paid the beneficiary £500 to account. Subsequently the House of Lords reversed this finding and awarded expenses out of the estate to all claimants. In a petition to apply this judgment, held that the widow's agent was not entitled to decree for expenses in his name as disburser, the trustees having a right of set off in respect of the sum of £500 paid by them to her on account.

Munro v. Bothwell, September 16, 1846, Arkley's Justiciary Reports, 118, disapproved.

Headnote:

John Grieve, sometime hotel proprietor in Edinburgh, died on 23rd March 1903, leaving a trust-disposition and settlement dated 22nd January 1894 with various codicils, all registered in the Books of Council and Session on 9th May 1903. The truster was survived by (1) his widow, Mrs Elizabeth Simpson or Barclay or Grieve, (2) a son James Grieve, and (3) two daughters, Mrs Ferguson and Mrs Nisbet. Difficulties having arisen as to the meaning of the testamentary writings, Frank Hunter, W. S., Edinburgh, and others, the trustees, raised an action of multiplepoinding against the widow and surviving children in which the widow Mrs Elizabeth Grieve claimed, inter alia, a liferent of the sum of £10,000.

On 22nd June 1904 the Lord Ordinary ( Kyllachy) pronounced an interlocutor, inter alia, repelling Mrs Grieve's claim quoad the liferent of £10,000, but on 16th November 1904 their Lordships of the First Division, on a reclaiming note, pronounced an interlocutor recalling that of the Lord Ordinary and ranking and preferring her to the said liferent.

On 30th December 1904 Mrs Grieve received a payment of £500 to account of her liferent and granted a simple receipt therefor.

On 14th November 1905 James Grieve, Mrs Ferguson, and Mrs Nisbet, claimants in the multiplepoinding, appealed to the House of Lords, and on 29th May 1906 their Lordships gave judgment reversing the interlocutor of the First Division of 16th November 1904, inter alia, quoad the provision of the liferent of £10,000 to Mrs Grieve, and awarded costs out of the estate to all the parties.

The claimant and appellant James Grieve having died on 22nd December 1906, his testamentary trustees presented a petition to the Court to apply the judgment of the House of Lords.

Counsel for the claimant Mrs Grieve moved for decree for expenses in name of the agent-disburser and argued—Decree for the expenses should be in name of the agent-disburser so as to prevent any debt being set off against them— Russell v. Greig & Peddie, January 28, 1826, 4 S. 406; Miller v. Geils, June 22, 1848, 10 D. 1384; Bell's Prin., 1389. That was the rule, and it applied to prevent even a principal sum recovered in the suit being set off against such expenses—Begg on Law Agents, p. 193; Munro v. Bothwell, September 16, 1846, Arkley 118, Lord Moncreiff at 120. The only exception was where it was sought to set off another set of expenses against those claimed— Gordon v. Davidson, June 13, 1865, 3 Macph. 938, Lord Justice-Clerk Inglis at p. 939, approving Bell's Com., vol ii, p. 36. Lochgelly Iron and Coal Company, Limited v. Sinclair, January 22, 1907, 1907 S.C. 442, 44 S.L.R. 364 (to which the Lord President had referred), was a case of one set of expenses being set against another.

Argued for the pursuers— Esto that Gordon v. Davidson ( ut supra) laid it down that extrinsic claims were not to be set off against an award of expenses, here the case was different, for the claim sought to be compensated by the expenses arose out of this very action. It was a claim for money paid to Mrs Grieve under an order of the Court which had been recalled on appeal. Compensation was pleadable, and the trustees should not be deprived of the right of pleading it by decree being granted in name of the agent disburser.

Judgment:

Lord President—The facts on which this controversy arises are these:—A certain lady, Mrs Grieve, was a claimant in a multiplepoinding which had to do with the estate of her deceased husband John Grieve. In the Court of Session there was a finding pronounced which affirmed her right to the interest on a sum of £10,000. After that finding was pronounced Mrs Grieve made application to the trustees and the trustees made a payment to her of £500. Another claimant thereafter took an appeal to the House of Lords, which reversed the finding of the Court of Session to which I have referred and determined that Mrs Grieve had no right to any interest on the sum of £10,000. At the same time the House of Lords awarded expenses to all the claimants out of the fund in medio.

On a motion to apply the judgment the agent for Mrs Grieve asks that decree for expenses be pronounced in name of the agent-disburser. This motion is resisted by the trustees, who point out that if decree is granted as craved they will lose their right to retain the sum found due as expenses against the £500 paid by them to Mrs Grieve out of the estate.

The point is really settled by the judgment in Lochgelly Iron and Coal Company, Limited v. Sinclair, 44 S.L.R. 364. I had occasion in that case to go into the general principles determining the right of an agent to get a decree in his name, and the judgment in that case was based on the judgment of Lord Justice-Clerk Inglis in Gordon v. Davidson, June 13, 1865, 3 Macph. 938. The point is found shortly stated in a sentence quoted in the opinion of Lord Inglis in that case from Lord Glenlee—“I have no idea that the agent in a cause is in any better situation that the principal party, barring extrinsic claims of compensation.” Applying that, I have no doubt that this is not an extrinsic claim. Part of the fund in medio has been paid to this lady, and it is difficult to see why the

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trustees should be deprived of their right to claim retention as compensation. We are not deciding as to whether the lady herself may not have a good defence against this claim.

I may add that the case of Munro v. Bothwell, September 16, 1846, Arkley's Justiciary Reports, is in conflict with the other decisions, and cannot be looked on as an authority. That judgment, though by a judge of great eminence, was given on circuit, when there is naturally less time for deliberation than in cases determined by a Division of the Court. In view of other decisions I think that that case is not law.

Lord M'Laren—I concur not only in the result but in all the grounds of your Lordship's decision.

Lord Kinnear and Lord Pearson concurred.

The Court refused the motion.

Counsel:

Counsel for the Pursuers and Respondents (John Grieve's Trustees) — Chree. Agents— E. A. & F. Hunter, W.S.

Counsel for the Petitioners, Claimants and Appellants (James Grieve's Trustees) — Macmillan. Agents— Menzies, Bruce-Low, & Thomson, W.S.

Counsel for the Claimant and Respondent (Mrs Grieve) — Grainger Stewart. Agents— Morton, Smart, Macdonald & Prosser, W.S.

Counsel for the Claimant and Respondent (Mrs Fraser) — MacRobert. Agents — Kirk, Mackie, & Elliot, S.S.C.
1907