J. A. Robertson (Wright's Trustee) v. Wright and Others

Note .—The Lord Ordinary holds the proof to be quite clear to the effect that the defender Mr Wright neither had nor has for the period in question any claim against the other defenders for salary as their cashier and book-keeper, except at the rate of £1, 10s. per week; and he thinks it is equally clear in the proof that no action was necessary by the pursuer for a third of this salary, as it was paid to him down to the 15th of October last, and as there was no refusal to account for it to him at the same rate subsequently.

“But at the debate the pursuer's counsel maintained that he was not only entitled to a third of Mr Wright's salary payable to him by Messrs Blyth & Cunningham, as their cashier and bookkeeper, but also to one-third of an additional allowance, which it appears from the proof was made by these gentlemen to Mr Wright as a gratuitous act of kindness and benevolence merely, and not as salary at all, and for payment of which they are not now, and had not been for the period libelled, under any obligation whatever. The Page: 95 ↓

The Lord Ordinary has only further to explain that he gave the pursuer an opportunity of amending his summons and record upon showing that it would be competent for him to do so under the Act of 1868; but this opportunity he stated he had no desire to avail himself of, probably because, on examining the statute, he found that no such amendment as would be necessary to serve his purpose could be competently made.

In regard to the matter of expenses, the Lord Ordinary also gave the pursuer an opportunity of being heard, but he declined saying anything on the subject. On the other hand, it was stated for the defenders that they had been always, and were now, quite ready to pay to the pursuer the sum due by them since 15th October last, whenever it was asked; and no dispute having been raised on this point by the pursuer, the Lord Ordinary felt he had no alternative but to dismiss the action, and find the defenders entitled to expenses.”

Argued for him—The cessio was granted on the footing that the bankrupt should assign one-third of his income. Nothing was said about salary, and admittedly the bankrupt received £200 a-year from Messrs Blyth & Cunningham on some footing. The fact that part of it was gratuitous and precarious did not make it any the less income, and as such he was bound to account for it. The discharges by the trustee only covered the amount of the actual payments, and did not exclude the trustee from recovering the balance.