Scottish Court of Session Decisions

Pending a sequestration of the rents of the entailed estate of Gart-more, granted at the same time that a ranking and sale was instituted, the petitioners who held preferable bonds of annuity for a certain yearly amount, with penalties, presented petitions for interim warrants on the judicial factor for payment of their annuities out of the rents. These were resisted by Ferrier, as trustee for other creditors; but were granted by the Court (see ante, X. 773), whose judgment was affirmed by the House of Lords, with costs. The petitioners now applied for a warrant for payment out of the rents of the expenses incurred in this Court in obtaining their interim warrants.

Ferrier objected that it had been ruled in the cases of Dickson's Trustee v. Rae, ¹ and Inglis's Trustees v. Goldie, ² that creditors must themselves bear the expense of interim warrants, which were an anticipation of their final decrees.

To this, it was answered, that the cases referred to were of interim decrees, in favour of creditors entitled to a share of the proceeds of a property on a final division, and who, if they obtained a partial decree by anticipation, were found liable themselves to bear the expense, while here the claim of the petitioners was a preferable right, not to a share of a fund for ultimate division, but to rents annually accruing, and to which they were entitled as these fell due; and that the penalty in the bond covered the expenses of the interim warrant, as the proper and ordinary mode of making their right effectual. ³