Scottish Court of Session Decisions

Lord Ormidale—Mr Syme here finds that his claim as it exists at present in the form of a debenture bond does not give any power of execution. What he wants is that power, and I think he should have it. He undertakes to do nothing more than to get decree for this amount, and I feel no doubt that there has not been any sufficient ground shown upon which any restraint of this application should be granted. It is always in the power of the Benhar Company to come here again if they wish.

Lord Gifford concurred.

Lord Young—I understand that this application to restrain the petitioner from obtaining decree is to be refused by your Lordships as not being warranted by the Act. The 85th section of the Companies Act of 1862 is—[ reads as quoted supra] If there were any question here—for example, whether the Benhar Company was to go into liquidation or not—it might be very inconvenient to have applications presented on behalf of individual creditors for decree constituting their claims. In such a case as that the Court will order such restraint, and order it moreover upon the condition that the restraining parties find security for any damages that might be sustained by the creditor in consequence of their action. This is the usual course in England, as may be seen readily from the passage in Lindley quoted from the bar.

In the present instance a holder of the debenture bonds of a company for whose liquidation a petition has been presented, wants a decree, and he prefers to have this to the bond in its present shape; the company have not any defence whatever to the action raised on the bond, and I cannot see that they are entitled to restrain. The question was fairly put to their counsel whether they were prepared to give any undertaking to find security for damages, but they refuse to do this, and yet, notwithstanding, wish us to interdict the pursuer from the simple process of taking the decree to which he is entitled as a matter of course, and to which no defence is offered.