Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1877/14SLR0616.html
Cite as: [1877] ScotLR 14_616, [1877] SLR 14_616

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SCOTTISH_SLR_Court_of_Session

Page: 616↓

Court of Session Inner House First Division.

[Sheriff of Aberdeen.

Tuesday, July 10.

14 SLR 616

Burnett

v.

Murray, et e contra.

Subject_1Process
Subject_2Caution
Subject_3Bankrupt.
Facts:

Circumstances in which the Court refused to order an undischarged bankrupt to find caution for expenses.

Observed that when a litigant becomes bankrupt the opposite party ought to move for intimation to his trustee.

Headnote:

These were cross actions, by which the parties sought each to obtain payment from the other of sums alleged to be due in respect of a partnership that had subsisted between them. The result of the Sheriff-Substitute's judgment was in favour of Murray, and the Sheriff adhered. The case was appealed to the Court of Session, and when it appeared on the Single Bills the respondent Murray asked that the appellant Burnett should be ordered to find caution for expenses, in respect that he was an undischarged bankrupt. It appeared that he had been sequestrated in 1867, but had been engaged in the partnership out of which this action arose since 1873. No intimation had been made to his trustee.

At advising—

Judgment:

Lord President—When a litigant becomes bankrupt he is no longer in a position to carry on a litigation, because he is divested of his whole estate and his trustee is vested in it. The proper course in such circumstances is to give notice to his trustee, that he may become a party to the suit, and carry it on if he sees fit. If he declines to do so, that is equivalent to an abandonment of that asset, which the bankrupt may then deal with as he pleases; but as that is the only thing he has in the world, he cannot be allowed to carry on the litigation without finding caution for expenses. That is the rule in the ordinary case, but here the circumstances are peculiar. The bankrupt was sequestrated in 1867, and has since that time been carrying on business for several years, and, in particular, has entered into a joint-adventure with the other party to this action, from which joint-adventure the cross actions now under appeal arise. Then, when a partnership accounting is brought, is it to be allowed that his partner should turn round and say “You were sequestrated in 1867, and have not been discharged, and you must find caution for expenses here?” The proper motion for the respondent's counsel to have made would have been for intimation to the trustee. Instead of that he comes suddenly with this motion, which is as irregular in form as it is unfounded in substance.

The other Judges concurred.

Page: 617↓

Motion refused.

Counsel:

Counsel for Appellant— Shaw Agents— Rhind & Lindsay, W.S.

Counsel for Respondent— Mackintosh. Agent— Alexander Morison, S.S.C.
1877

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