Brown's Trustees v. Horne [1907] ScotLR 795 (12 June 1907)

Brown's Trustees v. Horne [1907] ScotLR 795 (12 June 1907)

Where a trust deed expressly authorises trustees to employ one of their number or his firm as law agent or factor and to allow usual remuneration, such charges are legitimate and may be charged against the owner of the security subjects. Further, after reference of the 'whole cause' to a judicial referee, the scope of the reference is limited to the matters in dispute at the time of reference, and new claims (such as set-off for income tax on interest already settled) cannot be introduced by amendment.

Citation
[1907] ScotLR 795
Parties
Pursuer: Brown's Trustees; Defender: David Horne
Jurisdiction
Scotland
Judgment Date
12 June 1907
Procedural Posture
Civil / Inner House, First Division, Reclaiming Note (appeal) Against Lord Ordinary's Interlocutor and Subsequent Procedural Orders
Outcome
Reclaiming note refused; interlocutors of Lord Ordinary and judicial referee adhered to.
Legal Topics
Trustee Remuneration, Heritable Security, Mortgagee in Possession, Judicial Reference, Amendment of Record, Expenses of Management
Trusts and Estates Property Law Civil Procedure Arbitration Trustee Remuneration Heritable Security Mortgagee in Possession Judicial Reference +2 more

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Parties

Brown's Trustees

Pursuer

David Horne

Defender

Procedural Posture

Civil / Inner House, First Division, Reclaiming Note (appeal) Against Lord Ordinary's Interlocutor and Subsequent Procedural Orders

Legal Issues

  1. 1 Whether trustees may charge professional fees of a law firm in which a trustee is a partner against the owner of security subjects when expressly authorised by the trust deed
  2. 2 Whether a judicial referee/arbitrator can allow amendment of the record to introduce new claims after reference of the 'whole cause'
  3. 3 Whether the defender is entitled to set off income tax on interest against the sum sued for

Ratio Decidendi

Where a trust deed expressly authorises trustees to employ one of their number or his firm as law agent or factor and to allow usual remuneration, such charges are legitimate and may be charged against the owner of the security subjects. Further, after reference of the 'whole cause' to a judicial referee, the scope of the reference is limited to the matters in dispute at the time of reference, and new claims (such as set-off for income tax on interest already settled) cannot be introduced by amendment.

Court Disposition

Reclaiming note refused; interlocutors of Lord Ordinary and judicial referee adhered to.

Orders

  • Trustees entitled to charge law agent's account against defender, subject to taxation of account by Auditor.
  • Referee and Lord Ordinary correctly refused amendment to introduce income tax set-off claim.