WILLIAM WADDEL, (P Wood and Mrs R Veitch's Trustee) v CHARLES FERRIER, (White's Trustee) (Court of Session)

Mr Wood and Mrs Veitch were the assignees of an heritable bond of annuity over Graham of Gartmore's estate. The bond provides for the regular half-yearly payment of the annuity, and ‘a fifth part of liquidate penalty and expenses in case of failure.’ Power is given to uplift the rents, &c. the creditor being accountable for his intromissions, after payment of the annuity, penalties and interest, ‘together with the expenses incurred in levying the said rents, maills and duties, or any part thereof.’

These estates were sequestrated on the application of Mr Ferrier, trustee for White, an adjudging creditor, and a judicial factor was appointed. Ferrier at the same time brought a ranking and sale of Mr Graham's estate, which was opposed by Waddel, as trustee for Mr Wood and Mrs Veitch, and by other annuitants, creditors; and the Court (2d June 1832) sisted procedure in the ranking, until it should be determined whether the lands to which it related were held in fee-simple or under entail.

On 13th May 1832, Waddel applied for an interim warrant for payment of the arrears of the annuities, which was resisted by Ferrier; but the Court (6th July) granted warrant for payment of the annuities, ‘with interest from 9th February last, till payment, and reserve to the petitioners their further claim under the heritable bond of annuity assigned to them.’ No expenses were found due. Ferrier appealed, but the judgment was affirmed, with certain costs, which were paid.

The petitioner having thus been put to considerable expenses in obtaining the interim warrant for payment of the annuities, applied to the Court for warrant on the judicial factor for payment of the expenses, and pleaded —

The Court considered the case precisely analogous to those of Dickson and Inglis's trustee, and refused the petition, with expenses, without prejudice to any claim in the event of the ranking being dismissed.