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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Ore v. Melville [1872] ScotLR 10_81 (23 November 1872) URL: http://www.bailii.org/scot/cases/ScotCS/1872/10SLR0081.html Cite as: [1872] ScotLR 10_81, [1872] SLR 10_81 |
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Page: 81↓
[Sheriff of Edinburgh.
Circumstances in which the Court refused to recal a finding of expenses in the Sheriff Court against a party who was successful on appeal, on the ground that, by his failure to account extrajudicially he had caused the other side unnecessary expense.
Page: 82↓
This was an action raised in the Sheriff-court of Edinburgh by Samuel Orr, trustee on the sequestrated estate of John Munro & Co., concluding for payment of a sum amounting to £27, 2s. 4d., due by the defender Alexander Melville to the said firm of John Munro & Co. The defender pleaded that various items were overcharged, and stated a counter claim of £18, 2s.
After a proof, the Sheriff (Davidson) found for the pursuer, under deduction of two sums of £1,.2s. and £7, 10s, which was admitted by the pursuer, who was also found entitled to expenses.
The defender appealed.
At advising—
The trustee only did his duty in bringing an action to recover sums apparently due to the trust estate, but then the defender is entitled to defend himself, and I think the trustee has not made out his claim.
The important element in the case is the account No 11 of process, which bears date 1871. The termination of the account proper shows a balance of £33, 15s. 6d. against the defender, and all the remaining entries, except the last two, are in pencil, but these last two are in ink, are in the bankrupt's writing, and prove that the account was rendered in its present shape by the bankrupt to the defender. To be sure the account, as now sued for, contains some items of later date, but these altogether make £7, 6s. 10d., and against that there is £7, 10s., which, it is admitted, must go to the defender's credit. That being the evidence of the account itself, the question is, what evidence there is to set against it. The trustee says he has made up an account from the bankrupt's books, bringing out a different result, but it is certain that there is no actual balance standing in those books of this amount, so that, so far, the account sued for must be more or less conjectural, so that I am afraid we must recal the Sheriff's interlocutor, and assoilzie the defender. As regards the question of expenses, I cannot say that the defender's conduct has been quite satisfactory. He has allowed the trustee to bring this action, which, in the absence of further information, he was bound to do, but it was quite easy for the defender to have given him such information, and so have saved all this expense. In these circumstances, while I think we must allow the defender his expenses in this Court, I am not disposed to recal that part of the Sheriff's interlocutor which gives expenses against him in the Court below.
The other Judges concurred.
Counsel for Defender and Appellant— Mair. Agents— M'Caul & Armstrong. S.S.C.
Counsel for Pursuer and Respondent— Brand. Agent— Robert Finlay, S.S.C.
