Argued for pursuer— The small-debt action was brought and the decree was granted against him in his representative capacity, and the use of diligence against his private estate was incompetent. This had been authoritatively settled by Craig v. Hogg , October 17, 1896, 24 R. 6. A trustee could be legally sued in his representative capacity under the Small Debt Act. The word “as” before trustee was immaterial; if a defender was designed trustee or executor of some-one, the action was brought against him in his capacity of trustee or executor, and diligence following on such an action used against his personal property was without any warrant at all— Wilson v. Mackie , October 22, 1875, 3 R. 18. The case of Jaffray was very special. It was the case of a trustee on a sequestrated estate, and from the session-papers it appeared that he had become personally liable as cautioner. If the case had any bearing it had been overruled by Craig, supra , which was a decision of seven judges finally settling the law on the subject. The proof had been allowed only with a view to discover whether the trustee had any trust-estate in his hands when he first became aware of Dr Matheson's claim. It had been conclusively proved that the first intimation of Dr Matheson's claim which the trustee had received was on 10th June 1898, which was eleven months after the truster's death and three months after the trustee's discharge.
Lord Trayner —I think it a great pity that there should have been so much litigation as there has been over an account for £3, 10s., but I am of opinion that the interlocutor now under review is well founded. The claim made by Dr Matheson is against the executor of his patient. Now, being a debt against the executry estate, the executor in the due administration of the estate is bound, if he has funds, to pay it. At the date of Mrs Ward's death, and at the date of the discharge of the executor, there were sufficient executry funds to pay this claim if it had been duly intimated. Mrs Ward died in July 1897; the executor was discharged on 9thMarch 1898, having accounted for his whole intromissions with the executry estate to the single beneficiary entitled to take up the succession. He ceased from that moment either to have an official position in connection with the estate or to have any executry funds in his hands for which he was bound to account. He had accounted for all the funds he had received. Accordingly, after 9th March 1898 he had no executry funds to meet any claim that might be presented against the executry In these circumstances it is plain that Mr M'Mahon is not personally liable in any debt which formed a claim against the estate unless he had behaved improperly in the administration of the estate which was under his charge as executor. Now, did he do that ? If he had received notice of Dr Matheson's claim anterior to the period of his settling up the executry accounts without providing for it he would have been acting improperly. The question therefore comes to be, whether the account or claim by Dr Matheson was made or intimated anterior to that date. Now, I am satisfied upon the proof that Dr Matheson has failed to show that the account was rendered. When I say that I do not mean to throw any doubt upon the honesty of Dr Matheson's evidence. I think he is either under a mistake when he says he rendered the account or that the document which he says he rendered in September 1897 had been sent to some improper address or had fallen aside and never been dispatched at all. Certainly it never reached the hands either of the executor or the law-agent who was administering the estate for the executor. I think that view, which I should be compelled to take upon the mere parole testimony if there was nothing
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Now, I read that as meaning “I understand you are winding-up Mrs Ward's estate as the agent; when will it be wound up?' I think that is the most likely form in which anyone would put the question who had or might have a claim to render, and who wished to do so before the estate was wound up, but it is not indicative of his having, months before that, already rendered an account to which no attention had been paid. The second letter says— [ reads ]. There is there a reference to an account, and that letter was not answered. I do not wonder at that, because in a very small succession of this kind the law-agent did not probably want to write more letters than were necessary, and he had nothing to say about the account, because by September 1898 the executor had been discharged, and the executry estate was wound up and done with. Therefore, if I take these two letters by themselves, I cannot regard them as affording any corroboration of Dr Matheson's statement that he had sent in his account in September 1897. If Dr Matheson did not render his account until 10th June 1898, then the estate had been wound up and the executor discharged. I am of opinion, therefore, that as Dr Matheson has no claim against the executor upon any ground other than that of improper administration of the executry estate, he has failed to show that upon that ground he has a claim for the payment of which Mr M'Mahon is now personally responsible. I regard that as sufficient for the decision of the case, but it is right I should say a word with regard to the more technical question of the construction of this decree. While I would be disposed to look at the decree liberally in the interests of the pursuer, I think, having regard to the judgment in Hogg v. Craig (from which I dissented, but which I am nevertheless bound to regard as authoritative), it is not possible to read this decree, as expressed, as meaning anything else than a decree pronounced against the defender in his representative capacity as executor. The decree finds and decerns against the within designed James M'Mahon. Now, the within designed James M'Mahon is undoubtedly the James M'Mahon who resides at certain places, but he is also—and that is the ground of the action—the trustee and sole executor of the late Mrs Ward. You cannot separate the designation of James M'Mahon into two parts; you must take him as the pursuer gives it; and the pursuer designs the defender as trustee and sole executor. I do not proceed to any extent upon the words “as libelled” which have been added by the Sheriff to the statutory form (whether that is warrantable or not I do not say), but if the words are to be read at all, they, from the position in which they stand, strengthen the view that the Sheriff was limiting the decree to a decree against the within designed defender as he was libelled—that is, as executor. Upon the whole matter I think the Sheriff-Substitute reached a right conclusion, and that we should adhere to his judgment both in law and in fact.
Lord Kincairney —I come to the same conclusion as Lord Trayner, and concur in and adopt his observations as to the purport and effect of the proof and the letters. What occurs to me however is, that we are not considering whether the respondent should be found liable personally or only as trustee. That question has already been decided by the Sheriff-Substitute in the Small Debt Court, and the decree has not been challenged as incompetent. What we have now to do is only to construe that decree with such assistance in the construction of it as the proof affords. If the decree were against the respondent personally it would not signify whether he had trust-funds in his hands or not. That would have signified only if the decree were against him as trustee. Now, I think that the decree is, according to its natural construction, a decree against the respondent as trustee. I attach some importance to the addition of the words “as libelled” to the statutory form. The designation of the respondent, and the character in which he is sued, i.e ., trustee and executor, are given in the summons and the decree as against “the within designed James M'Mahon as libelled.” I cannot put any meaning on the words “as libelled” unless I read them as referring to M'Mahon's trust-character. I find nothing in the proof tending in the least to displace that construction. Reading the decree as a decree against the respondent qua trustee, I am satisfied, for the reasons stated by Lord Trayner, that the respondent was not possessed of trust-funds, and had not parted with them in disregard of the rights of the creditors.
Lord Justice-Clerk —I entirely concur in your Lordships' judgment that Dr Matheson has failed to prove what he endeavoured to prove, namely, that his account was lodged before the winding-up of the executry estate; and as regards the judgment pronounced I agree in what has been said, and I do not think it necessary to add anything more except that I consider this to be a lamentable litigation. This gentleman, I suppose, could have had no difficulty, and it is not suggested that he would have had any difficulty, in getting payment of his account from the beneficiary who had got possession of the estate. Instead of that, he has carried on this litigation for a considerable time to his own great loss. I do not suppose it would have been any gain to him whatever, even if he had been successful, probably the reverse.
Lord Young and Lord Moncreiff were absent.
The Court pronounced this interlocutor:—
“Dismiss the appeal: Find in fact and in law in terms of the findings in fact and in law in the said interlocutor appealed against: Therefore of new grant interdict as craved, and declare the same to be perpetual, and decern.”
Counsel for Pursuer— Kennedy— A. M. Anderson. Agent— W. R. Mackersy, W.S.
Counsel for Defender— Salvesen, Q.C.— T. B. Morison. Agents— P. Morison & Son, S.S.C.