Scottish Court of Session Decisions

Love, a sequestrated bankrupt, raised two actions of damages, one against Hunter and others for an alleged illegal apprehension after his sequestration, and in violation of a personal protection, and the other against Railton for defamation, also subsequent to the sequestration. The election of the trustee was disputed, and the defenders in these actions maintained that without the concurrence of a trustee, or finding caution for expenses, the pursuer could not insist.

The Lord Ordinary in both actions pronounced this interlocutor—“Finds that he is not entitled to insist in this action unless he shall either obtain the concurrence of the trustee as a party thereto along with him, or find caution to the defenders for expenses to be incurred by them in the cause, in case expenses shall ultimately be found due to them: Sists process for twenty-one days, in order that the pursuer may intimate the dependence to the trustee on his sequestrated estate.”

Love reclaimed, and pleaded that in all the cases where a sequestrated bankrupt had been held bound to obtain the concurrence of the trustee, or to find caution for expenses, the cause of action had arisen prior to the sequestration, so that the whole interest had been vested in the trustee, while in an unreported case of White v. Ewing, it had been found that a party dealing with a sequestrated bankrupt was not entitled to object to his suing without the concurrence of the trustee, or finding caution, and consequently that the same should hold as to claims arising not from dealing, but from acts entitling to damages.

To this it was answered—

The true principle of the rule enforced by the Lord Ordinary, is that of affording a proper protection to the party litigating with a sequestrated bankrupt. Where one sues on the poor's roll, checks against vexatious litigation are provided by the reports required from the lawyers and agents of the poor; but in regard to a sequestrated bankrupt where the trustee does not concur, there is no such check, and the party is therefore entitled to the protection of caution for expenses, equally whether the cause of action arose before or after the sequestration.