Scottish Court of Session Decisions

In November 1877 the pursuers, the trustees of the late Andrew Smith, upholsterer in Dundee, agreed to sell to the defender John M'Cheyne, and the defender agreed to purchase from them, certain heritable subjects in Dundee belonging to the trust-estate, at the price of £2400, with entry at the term of Whitsunday 1878, when the price was payable, all conform to the conditions specified in certain missives of sale. The pursuers averred that on the faith of this contract they had made alterations on the adjoining trust-property still in their hands; and that the defender entered upon possession of the subjects, made alterations thereon, removed tenants, and in February 1878 advertised the property for sale, but that he refused to pay the price. In consequence they raised this action, concluding for specific implement, or alternatively for £1000 damages. M'Cheyne lodged defences, and on 3d December 1878 the Lord Ordinary (Adam) pronounced this interlocutor—“Having heard counsel, decerns against the defender for implement in terms of the first conclusion of the summons, and quoad ultra continues the cause.” The defender afterwards became bankrupt, and on 30th January 1879 the Lord Ordinary pronounced the following interlocutor—“In respect it is stated at the bar that the defender has become bankrupt, appoints intimation of the dependence of this process to be made to the trustee on his sequestrated estate, and ordains him to sist himself as a party thereto, if so advised, within the next eight days.” The trustee did not sist himself as a party to the cause, and in consequence the Lord Ordinary on the 25th February ordained the defender to find caution for expenses within the next eight days. This the bankrupt failed to do, whereupon, on the 8th March, the Lord Ordinary pronounced this interlocutor—“In respect the defender has failed to implement the decrees of 30th January and 25th February 1879, decerns against him for £1000 of damages as concluded for: Finds the defender liable in expenses, and allows an account thereof to be lodged for taxation, and remits the same to the Auditor, but that to the effect of granting a decree of constitution only of the said damages and expenses.”

The defender reclaimed, and argued—It was not a universal rule that a bankrupt pursuer even should find caution for expenses— M'Alisier v. Swinburne; and so where a pursuer sued for damages for defamation. The case of a defender was a fortiori— Taylor v. Fairlie's Trustees. Since Taylor no bankrupt defender had in any reported case been found liable to find caution for expenses, and there were cases in which the defender had not been so found liable— Russell v. Crichton— Ferguson v. Leslie.

Authorities— M'Alister v. Swinburne, 7th November 1873, 1 R. 166; Taylor v. Fairlie's Trustees, March 1, 1838, 6 W. and S. 301; Russell v. Crichton, March 5, 1839, 1 D. 617; Ferguson v. Leslie, October 31, 1873, 11 Scot. Law Rep. 16; Bell v. Forrest, July 17, 1840, 2 D. 1460.

Argued for the pursuer—The defender had no

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personal interest to oppose such a decree as the Lord Ordinary had pronounced; the trustee represented the creditors, who alone had an interest, and he declined to interfere— Taylor v. Fairlie's Trustees, supra (Lord Chancellor); Bell's Comm. 434.

The Court continued the case in order that the trustee might again consider the propriety of sisting himself.

At advising—