in by the pursuer in that character, though it was sustained at his instance as a creditor of the pursuer under cessio. But it is clear from the first report of the case that a disposition omnium bonorum had not been granted by the debtor, nor even demanded from him, and on that ground the argument on the question of title was stopped, so far as the pursuer was insisting in the action in his capacity of trustee.

"The right of a trustee holding such a disposition to reduce preferences seems never to have been directly affirmed, and if it could be said that the disposition omnium bonorum was a purely voluntary disposition, there might be ground for holding that the trustee was in no better position than a trustee under a voluntary deed for creditors. Professor Bell (2 Com. 485) describes the conveyance as being 'nothing more in competition than a voluntary deed for creditors,' but the context makes it plain that he is speaking only of a competition with diligence begun for attaching the estate, and it is clear that a process of cessio is of no effect in a competition of diligence. It is to be kept in view that the process of cessio itself was at first purely voluntary on the part of the debtor. It was nothing more than a process to relieve the debtor from the hardship of diligence against his person; the debtor alone could petition, and the result of his not granting a disposition omnium bonorum was that his person remained open to diligence. But the character of the process has been entirely changed by the provisions of the Debtors Act 1880 and subsequent legislation. It is now open to a creditor to petition for cessio, as was done in the present case. The debtor can be compelled to execute the general disposition, and provision is now made for the debtor obtaining discharge, which was not previously open to him. The provisions of the Act of Sederunt of 1882 show how nearly the process now approaches to a sequestration as regards the position of the debtor and the creditors. It still differs from a sequestration in important particulars. It does not carry to the trustee estate subsequently acquired. Nor does it operate to equalise diligences, or to vest the estate in the trustee as if he had done complete diligence, as is the case under the sequestration statute. The effect of the trustee succeeding in the present action of reduction may be to throw the subject of the illegal preference open to the diligence of the individual creditors. But it appears to me to be the duty of the trustee as acting for the creditors to enlarge the estate available to them by challenging illegal preferences, and his relation to the creditors in this process of distribution gives him, in my opinion, a title to sue, if he relevantly avers that he represents creditors who have themselves a title to bring a reduction."

The defender reclaimed, and arguedPrior to the Debtors' Act 1880 the trustee in a cessio had no title to reduce preferences unless he had the right to sue con

ferred upon him by creditors who could themselves have brought a reduction — Bell's Commentaries (M'L. ed.) ii. 485; Thomas v. Thomson, July 20, 1865, 3 M. 1160, and December 19, 1866, 5 M. 198. Although the Debtor's Act 1880 had changed the procedure of cessio in many respects, it did not enlarge the rights of the trustee. Thus it was still competent for an individual creditor to execute diligence-Simpson v. Jack, November 23, 1888, 16 R. 131, 26 S.L.R. 76; Reid v. Graham, July 3, 1894, 21 R. 935, 31 S. L.R. 779. The trustee's right was only that of a disponee in heritage and assignee in moveables as at the date of the interlocutor of the Sheriff ordaining the debtor to grant a disposition omnium bonorum. He had no higher right than any other disponee or assignee would have. He was thus in the same position as the trustee in a private trust for behoof of creditors, who had no title to reduce illegal preferences- Fleming's Trustees v. M'Hardy, March 2, 1892, 19 R. 542, 29 S.L.R. 483. The grounds of judgment there were applicable to the present case.

Argued for the respondent-The question as to the right of a trustee in cessio to reduce illegal preferences under the Act 1621, c. 18, or 1696, c. 5, had never been decided. The passage cited by the defender from Bell's Commentaries related to the right to cut down competing diligence, not to the present question. Thomas v. Thomson, cit. supra, was not in point, because there there was no disposition omnium bonorum in favour of the trustee, and the case was decided before the Debtors' Act 1880, which altered the process of cessio. The trustee in cessio, provided that, as here, there were prior creditors, had an inherent title to reduce preferences, just as a trustee in sequestration had before the Bankruptcy Act 1856 gave him a statutory title- Edmond v. Grant, June 1, 1853, 15 D. 703.

At advising

LORD PRESIDENT-The question in this case is whether a trustee in a process of cessio bonorum, who also holds a disposition omnium bonorum granted by the debtor, has a title to reduce an alleged illegal preference given by the debtor to her daughter to the prejudice of prior creditors. The petition for cessio was presented by a creditor on 28th July 1900, the trustee was appointed on 8th November of that year, and the debtor granted the disposition omnium bonorum to him on 7th February 1901.

I think it may be taken as settled that a trustee under a voluntary trust-deed for behoof of creditors, granted by a debtor, has not merely by virtue of such a trustdeed a title to reduce illegal preferences, although he may do so if he holds a right acquired from creditors who had themselves a good title to reduce such preferences (Fleming's Trustees v. M'Hardy, 1892 19 R. 542). It was pointed out by Lord Kinnear in that case that the Act of 1606 gives to creditors of a particular character the right to sue for the reduction of pr efer

' Tr. v. Forbes

20, 1903

ences falling within the scope of the Act, and it gives the right to nobody else. From this it follows that nobody can sue under it unless he can set forth a title giving him a right to sue as a prior creditor, or as a representative of a prior creditor. In the present case it does not appear that the pursuer is either the assignee of the general body of the creditors or of particular creditors. Farther, it has never, so far as I am aware, been held that a trustee in a cessio has, as such, a title to reduce alienations by the bankrupt which may be invalid under the Bankruptcy Acts or at common law. In the case of Thomas v. Thomson, 3 Macph. 1160, 5 Macph. 198, the Court decided that the action was incompetently raised and insisted in by the trustee for the creditors appointed in a process of cessio bonorum who did not hold a disposition omnium bonorum from the bankrupt. It seems to me that the essential thing which the trustee (in the absence of statutory provision on the subject) would require to show, in order to entitle him to sue such an action, is that he represents by conveyance or assig nation one or more creditors who would have been in a position to do so, and this is not shown in the present case. While, therefore, I feel the force of the considerations stated by the Lord Ordinary, I am unable to concur in the result at which he has arrived.

In expressing this opinion I am not leaving out of view the argument which was urged to the effect that as under the Debtors' Act 1880 a cessio bonorum may be compulsory, there is more reason for holding it to have the effect of vesting the trustee with the right in question than if it was voluntary, but on the whole I think that in the absence of statutory provision we would not be warranted in holding it to have this effect.

For these reasons, I consider that the judgment of the Lord Ordinary should be recalled, and that the action should be dismissed.

LORD ADAM and LORD M'LAREN concurred.

LORD KINNEAR-I agree with your Lordships. I must say that I think that this is an action which it is not possible to regard without disfavour. It is an action against two poor women, a mother and a daughter. The mother is ninety years of age; and the daughter, who is the compearing defender, is on the Poors Roll. The pursuer sets out with perfect frankness the history of the whole course of the proceedings out of which the action has arisen; and it seems to me that that history discloses a use of the machinery of the law against these two defenders which I consider harsh and oppressive. The proceedings began with an action in the Small Debt Court at Airdrie against the daughter for the sum of £4 with expenses. That action ended in a decree against this poor woman for £4. Thereupon for the enforcement of this decree a cow was poinded, and the question arose whether the cow so poinded really belonged to the defender in this small debt

action or to her mother; and there arose a litigation about that question. Before that was determined the cow died; and one would have thought that that would have put an end to the whole proceedings, in which the only question was whether that cow had been properly taken in execution of a decree for £4. But this miserable litigation went on, and the result was that a decree was pronounced for £16, 2s. of expenses against the mother, payable to Messrs Macfarlane, solicitors, Airdrie. That was a decree for more than £16 of expenses following upon a small debt action for £4. On obtaining this decree the law-agents charged the defender Mrs Forbes for payment, and at the same time intimated to her that a petition for decree of cessio would be presented against her on 21st July 1900. The petition was presented accordingly and the old woman was ordered to execute in ordinary course a disposition omnium bonorum and a trustee was appointed. After that appointment had been made it appeared that this defender was in possession of a small leasehold property consisting of two small houses in one of which she and her daughter lived and carried on some small business. The other was let for £7 a-year. The defenders say that that is their whole means of livelihood, and there is no reason to doubt the truth of their statement. It appeared, however, that before the decree of cessio was obtained the elder woman had conveyed this leasehold right to her daughter; and the trustee in the cessio now brings this action for the purpose of setting aside that conveyance as a fraudulent alienation of property in defraud of creditors. In whose interest the action was brought does not appear to me to be very clear. The pursuer does not aver that there are any other creditors who will benefit except the firm of law-agents who instituted the cessio proceedings. The pursuer refers incidentally to what he calls "the general body of creditors," but who they are he does not say. If there are no other creditors, then it seems to me that the statement suggests a very serious doubt whether the process of cessio bonorum, which is intended for the distribution of an insolvent estate among competing creditors is being put to any proper or legitimate use when an attempt is made to employ it as a diligence for the benefit of one creditor only. The first question, and it is enough for the decision of this case, is whether a trustee in a cessio has a title to reduce prior alienations of the debtor's property. If there are any other creditors, then he is not their assignee. He represents nobody. He simply holds the estate of these poor women under a conveyance omnium bonorum. I think it is very doubtful whether this question could have been raised before the passing of the Debtors' Act 1880. At all events, the research of counsel has not discovered anything in the books to suggest that before that Act the trustee in a cessio was ever supposed to have a title to set aside alienations of this kind; and I do not think it wonderful that they should have failed to do so, because there is nothing in

the process of cessio bonorum as it was then understood to furnish the basis for such an action. It was an application to the Court by an insolvent debtor to be released from imprisonment on condition of his giving up the whole estate then belonging to him to his creditors; and that condition was carried out by his granting a voluntary disposition omnium bonorum in favour of a trustee. It is true that by statute (6 and 7 William IV. cap. 56) the decree in a cessio was made to operate as an assignation of the debtor's moveables in favour of a trustee; but the measure of the trustee's rights remains exactly the same as before, because as regards moveables he has no further or higher right than that of a voluntary assignee, and as regards heritable estate, a disposition is still required. Now, a conveyance of the property belonging to a debtor at its date cannot give any right or title to property which he had conveyed to a particular creditor before that date; and even if as matter of construction it bore to do so it could not give a title to recover such property on any ground on which the granter himself could not have recovered it. It seems to be clear enough in the first place that a disposition omnium bonorum can carry no other rights than such as are vested in the granter at the time, and in the second place, that the granter of such a deed can have no right or title to challenge a previous conveyance by himself to a creditor on the ground of his own fraud. I see no ground therefore on which the title of a trustee in a cessio, taken by itself, to challenge previous alienations of the property formerly belonging to the debtor, but which ex hypothesi has not been conveyed to him, can possibly be sustained. And I think that this view of the meaning and effect of the disposition omnium bonorum is entirely in accordance with that stated by Professor Bell when he says that the conveyance though judicially sanctioned is nothing more in competition than a voluntary disposition. The Lord Ordinary says that Professor Bell is speaking only of a competition with diligence for attaching the estate. I confess I do not understand how a conveyance should have the effect of a voluntary disposition only in competition with diligence, and yet have some higher and more powerful effect in competition with completed rights of property which would otherwise be preferable. But the material question to consider is why the disposition omnium bonorum cannot compete with diligence; and the obvious and sufficient answer is, that the right of the disponee in trust flows directly and exclusively from the debtor whose estate is supposed to be attached, and that the latter cannot give to anybody else a right which is not vested in himself. I am confirmed in this view of the deed by the cases, of which there are several, in which it was held that the fact of a debtor having granted deeds of alienation challengeable under the Acts 1621 and 1696 was a sufficient reason for refusing him the benefit of a cessio, because he had thereby incapacitated himself from making a full surrender of his

estate to his creditors; and the obvious inference is that the cessio was not regarded as a possible process for setting aside such alienations. The question is whether the Act of 1880 makes any difference. It is quite true that that statute introduced a material change in the character of the process of cessio, and it is necessary to consider what that change is, and whether it enlarges in any way the right or title of a trustee under a disposition omnium bonorum. There are two points in regard to which a great change has been effected by the Act. In the first place, it enables a creditor to sue out a petition for cessio, and does not leave the process in the hands of the debtor only; and in the next place, it enables the debtor to obtain a discharge. But it appears to me to leave the rights of the trustee exactly where they were. There is no clause of vesting, and there is nothing giving the trustee a different or higher right than he had before. His position, if my reading of the statute is right, is just the same as formerly, namely, that of an assignee in moveables and a disponee of heritage. It is reasonable to go from the statute to the form of the disposition omnium bonorum provided by the Act of Sederunt (22nd December 1882) relative to processes of cessio. By such a disposition the debtor conveys as of its date to the trustee his whole estate and effects, heritable and moveable. It seems to me to be impossible to ascribe any meaning or effect to such a conveyance other than what I have just stated, namely, that it carries the estate then belonging to the debtor, and nothing more. The Lord Ordinary observes that the relation of the trustee to the credi tors gives him a title to sue if he relevantly avers that he represents creditors who have themselves a title to bring a reduction. I do not understand how the title can depend on an averment of representation. Any title in the trustee must be as assignee. The relation between the trustee in a cessio and the creditors was fully considered in the case of Simpson v. Jack, 16 R. 131, and the late Lord President (Inglis) pointed out how widely different the position of a trustee in a cessio is from that of a trustee in a sequestration-"The latter," he says, "is a poinding and arresting creditor, and his diligence of arrestment and poinding is universal and extends to everything in the bankrupt's possession, and to the whole of what may be due to him, in the same way as if he had used poinding and arrestment." In regard to the position of a trustee in a cessio he says-"All that he has to do is to realise the estate and distribute it;" and again, "a cessio has not the effect of a universal diligence in favour of the trustee in a cessio." Now, the leasehold subject in question is not in my opinion part of the estate conveyed to the pursuer by the dis position omnium bonorum; he has no higher or other title than that given him by the disposition; and therefore he can have no right to set aside the defender's title to it, or to recover it from her in the present process.

v. Cal. Rwy

20, 1903

The Court recalled the interlocutor of the Lord Ordinary, and dismissed the action.

Counsel for the Pursuer and Respondent -A. S. D. Thomson-Adamson. AgentsW. & J. L. Officer, W.S.

Counsel for the Defender and Reclaimer -D. Anderson. Agent-Walter Finlay, W.S.

Friday, February 20.

SECOND DIVISION.

[Sheriff Court at Dundee.

FRASER v. CALEDONIAN RAILWAY

COMPANY.

(Reported ante, p. 43.)

Expenses Jury Trial Modification Small Amount of Damages Awarded Action Appealed from Sheriff Court against Dismissal on Relevancy - Witnesses not Resident Locally.

In an action brought in the Sheriff Court at Dundee against the Caledonian Railway Company the pursuer claimed £200 as damages for injuries sustained by her at Buchanan Street Station, Glasgow. The Sheriff-Substitute dismissed the case as irrelevant.

On

appeal the Court found the action relevant, and sent the case to trial by jury. The jury found for the pursuer, and assessed the damages at £25. On a motion for the defenders that the pursuer should only be allowed expenses on the Sheriff Court scale on account of the small amount recovered, held that as the case had been brought to the Court of Session in a successful appeal on relevancy, and as the witnesses of the accident were not resident at Dundee, this was not a case for modification, and that the pursuer was entitled to full expenses.

Shearer v. Malcolm, February 16, 1899, 1 F. 574, 36 S.L.R. 419, distinguished.

This case was the sequel to the case reported ante, p. 43, in which Mrs Margaret Isabella Fraser sued the Caledonian Railway Company for £200 as damages for injury sustained by being pushed off the platform at Buchanan Street Station, Glasgow, through the pressure of the crowd, when returning to Dundee on the Dundee Autumn Holiday, 1901.

The action having been found relevant, and the interlocutor of the Sheriff-Substitute dismissing it as irrelevant recalled, as reported ante ut supra, on 13th November 1902 an issue in common form was approved for the trial of the cause. On 8th December the case was tried before the Lord JusticeClerk and a jury, and the jury returned a verdict for the pursuer and assessed the damages at £25.

On 20th December the Court, on the motion of the defenders, granted a rule on the pursuer to show cause why a new trial should not be granted.

On 6th February 1903, after hearing counsel, the Court discharged the rule, and of consent applied the verdict, reserving meantime the question of expenses.

On 20th February counsel for the defenders and respondents moved the Court to modify expenses to the amount which would have been payable on the Sheriff Court scale, and cited Shearer v. Malcolm, February 16, 1899, 1 F. 574, 36 S. L.R. 419.

Argued for the pursuer and appellantThe pursuer was entitled to full expenses, taxed in the ordinary way Casey v. Magistrates of Govan, May 24, 1902, 39 S.L.R. 635. The present case was distinguishable from that of Shearer. The pursuer in the present case required to appeal to the Court of Session because the SheriffSubstitute had decided against her on relevancy. In Shearer the action was brought in the Court of Session. Further, in the present case the witnesses would have had to travel from Glasgow to Dundee even if the case had been tried by proof in the Sheriff Court, so that no more expense had been incurred by trying the case in Edinburgh.

At advising

LORD JUSTICE-CLERK-We have already decided that the pursuer is entitled to expenses, and the only question remaining for us is whether there should be any modification. Now, I think that is a matter to be dealt with in each case on its own special merits. In this particular case there is this peculiarity which does not often occur in cases coming up from the Sheriff Court. The pursuer was refused a proof in the Sheriff Court, her action being held irrelevant; and accordingly, if that was an erroneous judgment it required an appeal to set it right, and accordingly here we had a discussion on the relevancy, with the result that the Court thought that there was a relevant case for consideration. Now, the case being here, no one seems to have suggested that it should be sent back again to the Sheriff at that time. There might have been reasons for that which are not known to me, but at all events no such motion was made, and when the case was here an issue was allowed and it went to trial.

Now in such cases, if the matter is a small one, and if the result of holding the case here is to enormously increase the expenses by bringing a great crowd of witnesses from distant parts of the country to Edinburgh when the case might quite well be disposed of in the Sheriff Court, I should hold that in such circumstances there were certainly grounds for modification. But this case is peculiar in this respect, that while the accident which led to the injury took place in Glasgow, the case was raised in the Sheriff Court at Dundee against the Caledonian Railway Company, and therefore required to be disposed of in the Sheriff Court at Dundee, or in the Court of Session by jury trial. It was a case of an accident occurring at an overcrowded railway station, and it is quite obvious that many of the witnesses would have to come from Glasgow to Dundee, and

therefore considerable expenses would be incurred from that cause, and that probably there would be less expense by the trial being held here than in Dundee. Now, in that view I think this is not a case in which there is sufficient ground for modifying the expenses, not withstanding the fact that the verdict is not of large amount. I am therefore for allowing full expenses without modification.

LORD YOUNG-It did not occur to me when the motion was made to modify expenses that there was any ground whatever for that motion. The case, looking to the record, was one eminently fitted for jury trial. I could hardly conceive of a case better fitted for jury trial than this was. As your Lordship says, the Sheriff having thrown out the case as irrelevant, an appeal to this Court was necessary to do justice to the pursuer, who in our opinion had stated a relevant case. We decided accordingly, and it did not occur to any of the parties, and certainly did not occur to any of us, for none of us suggested such a thing, that it should not be tried by a jury, and it was tried by a jury, and without anything to suggest the idea that it involved improperly any expense whatever. Though the verdict was for £25 it was a substantial verdict, and according to ordinary practice it is followed by a judgment for expenses. If the defenders, a railway company here, thought that there was liability, and that some damages, if only £25 or any sum they thought was sufficient compensation then our law and practice enables the defenders to tender that; and if £25 had been tendered here by the defenders as compensation the defenders would not have been liable in expenses, modified or not, but would have been entitled to expenses. But there was no tender at all, and it being a case proper for jury trial, and a ver dict having been given for £25 in a case in which no tender at all was made, it does not occur to me that there is any suitable ground for modifying expenses. With reference to what your Lordship has said about cases being brought here from the Sheriff Court with the view to jury trial, that is permitted by statute to either party. In any case like the present either party has a statutory right to bring the case here with the view to jury trial. think we have decided--we have proceeded more than once on the view-that it is notwithstanding in the discretion of the Court to determine that a case is not a suitable one for jury trial, having regard to all the circumstances appearing in it, and in the exercise of discretion we may send it back to the Sheriff to proceed with the proof which we have allowed. We have done that, and in some cases have left the Sheriff to determine the expenses of appeal when he decided the case upon proof. But where we think that a party in the exercise of his statutory right has brought a case that ought to be sent to a jury, and we send it to jury trial, then, although the verdict may be for a small amount of damages, the defender having made no tender at all, I

am for proceeding on the ordinary rule of giving expenses to the gaining party, who has rejected no offer and has won the case against the other. I do not see there is any harm, but if there is any it is for the Legislature to correct it, in allowing a case to be brought in the Sheriff Court, and appealed here with a view to jury trial, because during the preliminary proceedings there is less expense in the Sheriff Court than if the action was brought here in the first instance. The preliminary expense of the record and the closing of it is certainly not greater-I imagine it is less --than it would be in this Court, and there. fore we start with this-that the expense is not increased but if anything diminished by that course being followed. And on the case being sent to jury trial, the suggestion that if the case is properly proceeded with without anything occurring at the trial to increase the expense, the fact that the verdict is only for £25 should disentitle the successful party to his expenses, is not to me sustainable. I therefore repeat that not only in this particular case, but in any case which is properly appealed here with a view to jury trial, and which in our opinion is fit for jury trial-for if we do not think so we will not send it, and are not bound to send it-there is no ground for proceeding otherwise than on the general rule that if the pursuer gets even £25 for a wrong for which he has been offered nothing, he is entitled to his expenses.

LORD TRAYNER I think a good deal may be said against giving expenses to the pursuer in a case like the present, where the jury have valued the claim at so small a sum-for I think it is not a substantial verdict-as £25. The terms of the Judicature Act we are all familiar with, and they have been acted on for a good many years, but I am clearly of opinion that whatever was the purpose and benefit of that Act when passed it has been very much abused within the last few years. The question of expenses is entirely one within the discretion of the Court, and while the practice is to give the successful party the expenses of the case, there is nothing to prevent the Court considering, if they see fit, whether the expenses should be to the full extent. In this case, without saying more on the matter of the general question, I would have been very well pleased to follow, and I think we might with propriety have followed, the precedent this Court has set in the case of Shearer, but having regard to the special circumstances of this case, which distinguish it somewhat from Shearer, and which your Lordship in the chair has detailed, I am not unwilling to assent to the judgment proposed.

LORD MONCREIFF-In this case I agree with your Lordship that there are grounds for allowing full expenses and not modifying. The only difficulty arises from the fact that only £25 of damages has been awarded, but I think your Lordship has pointed out a sufficient reason why we should not on that account modify the