Scottish Court of Session Decisions

At advising—

Lord Justice-Clerk—In the question as it is presented here I see no difficulty whatever, because the trustee is only the creature of his author, from whom he has received the estate. He cannot, therefore, say that by receiving the estate he has so divested his author as to prevent him from suing unless he consents to find caution for the expenses of the action. I am therefore for recalling the judgments brought under review.

Lord Young—I am entirely of the same opinion. I have read the Sheriffs’ judgments with something like amazement. They have quite misapprehended the law on the subject. It is according to the practice of this Court not to allow a party who is divested of his property to sue actions except on condition, and not always on condition, of finding caution for the expenses of the action. The reason of this rule of practice is that the person so divested is seeking to recover to himself something included in a conveyance to another. For example, a bankrupt who has been sequestrated, and so completely divested of his estate in favour of his trustee in bankruptcy, has sometimes brought an action saying, “No doubt the trustee is the proper person to bring the action, because the right is vested in him, but he improperly refuses to do so, and I ask leave to bring the action myself.” In such a case the Court may or may not allow him to do so, but only on condition of his finding caution for the expenses of the action. This observation, moreover, equally applies in the case of a person who has divested himself by a voluntary trust-deed. But in this case the person divested is suing his own trustee to have him ordained to pay over a balance on his estate, which he says lies in his trustee's hands. Can it be said that such a person's right has been so conveyed away to that trustee that he shall not be entitled to sue the action? If the action is proper, then he, and no one else, is interested in it. The right is in him, and he is seeking to make it good. To say that he is not entitled to do so without finding caution for the expenses is to assert a proposition outwith all authority and good sense.

There is, no doubt, a discretion in the hands of the Court—which is, however, but charily exercised—to make a party suing find caution for expenses; but I remember hearing the first Lord Mackenzie observe, that while a man's conduct in a cause may induce the Court to order it, absolute impecuniosity alone will not be held a sufficient reason.

I have been induced to make these few observations, as I have been struck by the erroneous impressions which the Courts below seem to have held on the matter.

Lord Craighill concurred with their Lordships.