Scottish Court of Session Decisions

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Cite as: [1868] SLR 6_264, [1868] ScotLR 6_264

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SCOTTISH_SLR_Court_of_Session

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Court of Session Inner House First Division.

Saturday, January 23 1868.

Lord President Lord Deas

6 SLR 264

Muir

v.

Hill and Keddell.

Subject_1Expenses—Dismissal of Action—Caution—Bankruptcy—Absconding.
Facts:

An incidental decree for a sum of expenses being pronounced against a pursuer, and he being charged thereon, and thereafter execution of search being returned hearing that he was not to be found in his house in Scotland, “he having absconded to England to prevent said warrant being executed”—motion by defenders to have the action dismissed, or the pursuer ordained to find caution, refused.

Headnote:

Muir, resident in Glasgow, brought an action of reduction of a decree-arbitral against Hill and Keddell, contractors, carrying on business in the county of Middlesex, and quarriers in the island of Mull. A proof being appointed for the 9th July 1868, on that day the Lord Ordinary, in respect of the absence of certain witnesses and havers for the pursuer, discharged the order for proof appointed for that day, appointed the proof to be led on a future day, and found the pursuer liable in expenses so far as unavailable by reason of the postponement of the proof. On 17th July the Lord Ordinary decerned against the pursuer for the sum of £27,18s. 8d., being the taxed amount of the defender's expenses. The decree was extracted, and on 9th September the pursuer was charged thereon. On expiry of the charge, warrant of search and apprehension was granted. Execution of search was returned, bearing that the messenger had searched Muir's dwelling-house, “but notwithstanding of the most strict, diligent and minute search in and through said dwelling-house, he, Muir, could not be found, neither could he be found in Glasgow at any time since the 18th day of November last, during which time said warrant has always been in my possession, he having absconded to England previously to prevent said warrant being executed; his wife also stating that he, Muir, had not been in Glasgow for more than six weeks, and that he had gone to England.” The defenders then, on 2d January 1869, moved the Lord Ordinary to have the action dismissed, with expenses; or, failing a decree to that effect, that the pursuer be ordained to find caution for expenses, in respect of his failure to pay the expenses found due by the interlocutor of 9th July, and contained in the decree of 17th July, and dues of extract, and of the pursuer being a notour bankrupt under said decree, and an execution of search produced.

The Lord Ordinary refused the motion, and the defenders reclaimed. After the reclaiming note was put out for hearing in the summar roll of Saturday 23d, the defenders, on Wednesday 20th, were offered payment of the sum in the decree, which offer they refused, on the ground that they were entitled to payment likewise Of subsequent expenses.

At the hearing,

Clark and Keir, for reclaimers, cited Samuel, 6 D. 1259, and Wight, 12 S. 535.

Scott for respondent.

Judgment:

Lord President—I don't see sufficient reason for altering the Lord Ordinary's interlocutor, apart from the tender of expenses made since the date of the reclaiming note. The question which the Lord Ordinary had to determine was a somewhat delicate one, as all such questions are. It is always a very strong measure to ordain a party to find caution for expenses, or submit to have his action dismissed at once, and it is only done on very sufficient grounds. If a pursuer is totally divested of his estate after coming into Court, by sequestration or otherwise, that is a sufficient reason for making him find caution as a condition of being allowed to follow out his suit. But that is because, in ordinary actions for recovery of money, he is no more in titulo to sue. His claim has passed to his trustee; and though, if the trustee will not take up the claim, that may give the bankrupt a right to pursue it for his own behoof, yet the fact that the trustee refuses to take up the claim is aprima facie presumption that the claim is unsound. Therefore, in several such cases the bankrupt has been ordered to find caution. But I am not sure that mere bankruptcy has ever been found a sufficient ground for ordaining a bankrupt to find caution. Samuel was a very peculiar case. There the bankrupt, being under ultimate diligence, went to the sanctuary, and remained there, and set his creditors at defiance. And therefore the Court, in respect it was admitted that Samuel was presently within the sanctuary, ordained him to find caution within eight days. But the circumstances here are not the same. This man goes to England with this decree against him and that is the whole state of facts on which the Court are asked to proceed. The execution only

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proves that the debtor is not to be found in his own bouse; in short, that be cannot be found in Scotland, and that the messenger calls absconding. It is possible that it may be so, but it is not certain.

I cannot say I am prepared to dismiss the action, or to ordain the pursuer to find caution for future expenses, and, failing his doing so, to dismiss on that ground alone. If I had been in the same position as the Lord Ordinary I should have done as he did.

But I am strengthened in that view by what has followed, namely, the tender of expenses made after the date of the reclaiming note. On the whole matter, I am for refusing the reclaiming note.

Lord Deas—I think the Lord Ordinary is right. Two grounds are urged in support of this reclaiming note. One is, that when the case was put down for trial, it was postponed on condition of payment of expenses, and these have not been paid.

I am not aware that it has ever been found that where there is an incidental decree for expenses, and payment of these expenses has not been made' an express condition of going on with the case, their non-payment is a good ground for dismissing the action or ordering caution. The party may have a really good case, but he may be unable to pay these expenses in the meantime.

The other ground is the bankruptcy of the party, conjoined with the fact of his having gone to England. Now, it must be conceded that bankruptcy alone will not do. The principle of ordering caution in such cases is, that the party is divested of his estate. But even there the rule is not absolute. It is a question of discretion. In the case of Samuel the Court no doubt held, in respect of the party going to the sanctuary, that that was equivalent to being divested of his estate, But no other case went that length, and if the same case occurred again I should consider it very carefully, and look at the whole circumstances, going on no general rule derived from Samuel. The tendency of the law is not to widen the penalty of dismissing an action.

Lord Ardmillan and Lord Kinloch concurred.

Counsel:

Agents for Pursuers— D. Crawford & J. Y. Guthrie, S.S.C.

Agent for Defender— James Webster, S.S.C.
1869