Scottish Court of Session Decisions

By Act of Sederunt, 6th February, 1806, “in order to provide an easy method by which the accounts of practitioners, as between agent and client, in this Court, may be checked and liquidated,” the Lords ordained, “That it shall be competent, either to the client or to the agent, to make a summary application to the Court, or to the Lord Ordinary before whom the cause may depend, or has formerly depended, to get the account claimed by the agent remitted to the auditor of Court, in order to be examined, and taxed according to these regulations; which remit shall, on the application having been served on the opposite party, and produced in Court, with a written intimation, be forthwith granted, and the auditor shall thereafter enquire and report upon the said account to the Court, or the Lord Ordinary; and the party shall have it in their power to state objections to the report, all in manner above-mentioned. And the sum so to be ascertained as the amount of the account shall alone form a charge against the client.”

In the sequestration of one Chalmers, Andrew Cassels Howden, W.S. was employed by him, and afterwards by the interim-factor and trustee, as agent, in which capacity an account was incurred to him, stated to amount to £292. In March 1830, Howden presented to the Court a summary petition (insisted in after his own sequestration by his trustee), as under the Act of Sederunt 1806, for taxation of his account, and for decree for payment of it against the trustee, and also against the creditors who had ranked on the estate. To this petition answers were given in by George Dunlop and Company and certain other of the creditors, who denied their liability on general grounds, founded upon the trustee's conduct and management—and in regard to two of them, on certain special grounds, applicable to their particular case; and they further contended, that this summary mode of constituting a debt against persons who were not, on the face of the proceedings, parties to the cause, and whose liability was disputed and required to be tried, was incompetent.

The petition having been remitted to the Lord Ordinary, a record was made up, and his Lordship pronounced an interlocutor, sustaining the competency of the application, and repelling the defences pleaded for all the creditors except one, whom he accordingly assoilzied.

Dunlop and Company, &c. having reclaimed, both as to the merits and the competency, the Court ordered cases on the latter question.

Pleaded for Dunlop and Company, &c.—

The Act of Sederunt does not apply to any parties but those litigating before the Court, in which case no question of liability, but only of liquidation and execution, can arise, the liability being already fixed by the decree in the cause; and, indeed, the Court could have had no power as to other parties, to deprive them of the privilege of being only liable to have decree given against them under a regular libelled summons. Accordingly, in practice this mode of procedure has been limited to those cases where either the liability is not disputed, or where it necessarily appears ex facie of the process in which the expenses have been incurred. ¹

Pleaded for Howden's Trustee—

The object of the Act of Sederunt was to afford an easy method of liquidating and obtaining decree for expenses, at the instance of the agent, against all parties liable to him therein, and the Court have accordingly been in use to proceed on proof of this, though denied, or not appearing ex facie of the process. ² But, besides the employment here by the trustee not being denied, and the ranking of the creditors appearing from the sederunt-book, which is part of the process, the liability of the respondents does appear ex facie of the process, necessarily arising from the fact of their being ranked. ³