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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Allan and Others (Smith's Trustees) v. M'Cheyne [1879] ScotLR 16_592 (7 June 1879) URL: http://www.bailii.org/scot/cases/ScotCS/1879/16SLR0592.html Cite as: [1879] ScotLR 16_592, [1879] SLR 16_592 |
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Page: 592↓
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The defender in an action of damages for the non-fulfilment of a contract of sale became bankrupt during the dependence of the action. He did not offer caution for expenses, and the trustee on his sequestrated estate declined to sist himself. The Lord Ordinary decerned against the bankrupt for the damages concluded for, but “to the effect of granting a decree of constitution only.” Held that the bankrupt having no interest to resist such a decree, was not to be permitted to continue his defence without finding caution.
In November 1877 the pursuers, the trustees of the late Andrew Smith, upholsterer in Dundee, agreed to sell to the defender John M'Cheyne, and the defender agreed to purchase from them, certain heritable subjects in Dundee belonging to the trust-estate, at the price of £2400, with entry at the term of Whitsunday 1878, when the price was payable, all conform to the conditions specified in certain missives of sale. The pursuers averred that on the faith of this contract they had made alterations on the adjoining trust-property still in their hands; and that the defender entered upon possession of the subjects, made alterations thereon, removed tenants, and in February 1878 advertised the property for sale, but that he refused to pay the price. In consequence they raised this action, concluding for specific implement, or alternatively for £1000 damages. M'Cheyne lodged defences, and on 3d December 1878 the Lord Ordinary (Adam) pronounced this interlocutor—“Having heard counsel, decerns against the defender for implement in terms of the first conclusion of the summons, and quoad ultra continues the cause.” The defender afterwards became bankrupt, and on 30th January 1879 the Lord Ordinary pronounced the following interlocutor—“In respect it is stated at the bar that the defender has become bankrupt, appoints intimation of the dependence of this process to be made to the trustee on his sequestrated estate, and ordains him to sist himself as a party thereto, if so advised, within the next eight days.” The trustee did not sist himself as a party to the cause, and in consequence the Lord Ordinary on the 25th February ordained the defender to find caution for expenses within the next eight days. This the bankrupt failed to do, whereupon, on the 8th March, the Lord Ordinary pronounced this interlocutor—“In respect the defender has failed to implement the decrees of 30th January and 25th February 1879, decerns against him for £1000 of damages as concluded for: Finds the defender liable in expenses, and allows an account thereof to be lodged for taxation, and remits the same to the Auditor, but that to the effect of granting a decree of constitution only of the said damages and expenses.”
The defender reclaimed, and argued—It was not a universal rule that a bankrupt pursuer even should find caution for expenses— M'Alisier v. Swinburne; and so where a pursuer sued for damages for defamation. The case of a defender was a fortiori— Taylor v. Fairlie's Trustees. Since Taylor no bankrupt defender had in any reported case been found liable to find caution for expenses, and there were cases in which the defender had not been so found liable— Russell v. Crichton— Ferguson v. Leslie.
Authorities— M'Alister v. Swinburne, 7th November 1873, 1 R. 166; Taylor v. Fairlie's Trustees, March 1, 1838, 6 W. and S. 301; Russell v. Crichton, March 5, 1839, 1 D. 617; Ferguson v. Leslie, October 31, 1873, 11 Scot. Law Rep. 16; Bell v. Forrest, July 17, 1840, 2 D. 1460.
Argued for the pursuer—The defender had no
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personal interest to oppose such a decree as the Lord Ordinary had pronounced; the trustee represented the creditors, who alone had an interest, and he declined to interfere— Taylor v. Fairlie's Trustees, supra (Lord Chancellor); Bell's Comm. 434. The Court continued the case in order that the trustee might again consider the propriety of sisting himself.
At advising—
Now, the effect of that decree is to enable the pursuer to rank on the bankrupt estate for damages and expenses, and it has no other effect whatever. The defender, who reclaims, is bankrupt, and we gave another opportunity to the trustee to sist himself, but he declines, and probably for good reasons. He may think that there is no answer to this demand, and that it would be throwing away the funds of the estate unnecessarily to attempt to meet it. It appears to me that the trustee as representing the creditors is the only person who has a direct and present interest in the matter. And although I am not prepared to go the length of saying that the Court will not permit the defender to continue to defend the action upon finding caution, still even in that case his title and interest would be very remote. But without caution it is, I am of opinion, altogether out of the question. In these circumstances, I am of opinion that we ought to adhere to the interlocutor of the Lord Ordinary with the exception of the small verbal inaccuracy.
The Court adhered.
Counsel for Pursuers (Respondents)— Guthrie Smith— Lang. Agent— J. Smith Clark, S.S.C.
Counsel for Defender (Appellant)— Rhind. Agents— M'Caskie & Brown, S.S.C.
