Scottish Court of Session Decisions

William Thomson, writer in Edinburgh, raised an action of damages against James Monro, messenger-at-arms, Kinross, and James Wyllie, farmer in Kinnesswood. Thomson's estates were sequestrated under the Bankrupt Act, and the Lord Ordinary, in respect thereof, appointed him, “within eight days, to find caution” for the expenses of process. Thomson got a bond of caution signed by two cuationers, but one of these (Crawfuird) was afterwards induced to withdraw his name from the bond. Thomson then got a second bond of caution prepared, which was signed by the two cautioners at the first bond, and by a third cautioner. Crawfuird, at signing the second bond, expressed his regret that he had recalled his name from the first, and stated that he was “imposed on to do so by Monro himself,” by groundless allegations. One of the parties to the second bond, named Spink, was afterwards induced to withdraw his name from it, and Thomson got two subsidiary cautioners to attest the sufficiency of the two who remained. One of these subsidiary cautioners was afterwards induced to withdraw his name, and, as the sufficiency of the parties remaining was objected to, Thomson got an attestation and subsidiary obligation signed by Patrick Wright of Halfields, Kennoway. Wright was afterwards induced to sign a letter withdrawing his name. During the course of these proceedings, which were said to have occurred before the bond or attestations were finally lodged, the defender, Monro, repeatedly moved to have the action dismissed, in respect no sufficient caution was found; but, as Thomson alleged that it was through the undue interference and practices of Monro that the cautioners and attestors had withdrawn their names, he pleaded that Monro was barred by personal exception from demanding caution.

The Lord Ordinary allowed a proof of these allegations, and it appeared that Monro had unduly interfered, both directly and indirectly, with the parties who had signed as cautioners or attestors, and especially with Wright. When the pursuer induced Wright to sign his name, Wright was warned by him that he would probably be exposed to solicitation to withdraw it, and he assured the pursuer that he would be firm. But Monro afterwards went to Wright's house at Kennoway, in Fife, where he found that Wright was then at Edinburgh. Monro then alarmed the relations of Wright as to the nature of the obligation incurred by Wright, and induced a brother of Wright to go along with him (Monro) to Edinburgh, where they saw Wright; and Wright put himself into the hands of a law-agent pointed out by Monro, who framed a letter withdrawing Wright's name, which Wright signed. In these circumstances the pursuer pleaded, that a clear case of personal exception was established against Monro, as he would have enjoyed the benefit of ample caution for expenses, had he not industriously prevented this, for the improper purpose of throwing the pursuer out of Court.

It was said that the other defender, Wyllie, had left the country.

The Lord Ordinary pronounced this interlocutor:—“Having heard parties’ procurators, and having considered the proof in this incidental point, involving the defender Monro's right to demand from the pursuer caution for the expenses of process, Finds, that in this case three different persons who had signed as cautioners or attestors, on behalf of the pursuer, have been successively induced to withdraw their signatures, before the bond or attestations were finally lodged: Finds, that in regard to one of these at least, viz., Patrick Wright, the defender is proved to have unnecessarily and unduly interfered in the measures which ultimately led to the retractation of the said Patrick Wright's attestation: Finds, that in these special circumstances, the defender is barred ‘personali objectione’ from insisting in the demand for caution; Therefore refuses the said demand, and appoints the case to be called, that the necessary orders may be given for the further preparation of the cause: And finds the defender liable in the expenses of the discussion and proof in this incidental point.” ^*

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* “ Note.—The right of a party to demand, in particular circumstances, caution for the expenses from his adversary, as a condition of the prosecution of the cause, is one which rests exclusively on equitable considerations. It is not to extend beyond the limits consistent with such considerations; and above all, it is not to be perverted by a party into an instrument of oppression, and denial of justice to his adversary, which would infallibly be the result if a party were allowed to insist for caution, while he was interfering with and assisting those measures by which his adversary's attempts to obtain it were obstructed or frustrated.

“The Lord Ordinary thinks a case of this kind is made out against the defender. Even in regard to the two other cautioners or attestors, he does not stand quite clear of suspicion; but as to Patrick Wright, it is proved that the defender went to Kennoway to give information to that person's relations of his having signed some document which might involve him in a pecuniary obligation; that that information had the effect of inducing his relations to send after him, with the view of getting him free, and the defender accompanied or rather conveyed Wright's brother to Edinburgh for that purpose, and took a part by recommending the agent in the measures which terminated in the recal of Wright's obligation. Whether Wright might or might not have withdrawn his name, independently of the objections of his relations, it is unnecessary to enquire; it is enough that there is proved against the defender, such an interference as is, in the opinion of the Lord Ordinary, sufficient to found a personal objection against his demand of caution.”

Monro reclaimed.

The Court unanimously held that the judgment of the Lord Ordinary was well founded, and should be adhered to. Monro then submitted to the Court, that though he might be barred from insisting for farther caution than such as had already been tendered, yet he was entitled to the benefit of any bond of caution now in process, and not validly withdrawn. This should the more readily be allowed, as Wright, the only party with whom it was held proved he had interfered, was only a subsidiary cautioner, or attestor, and he (Monro) should not be made worse, in consequence of interference with Wright, than if he had never asked for an attestor at all. The pursuer answered, that the finding of sufficient caution was all one transaction, following on the defender's own demand; that until it was completed, the cautioners were at liberty to withdraw; and that in the actual circumstances of this case the whole cautioners and attestors were free to withdraw if they chose. The Court gave no opinion on this matter, but merely inserted a reservation in their interlocutor, so as to keep the rights of all parties open.