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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Clarke v. Muller [1884] ScotLR 21_290 (12 January 1884)
URL: http://www.bailii.org/scot/cases/ScotCS/1884/21SLR0290.html
Cite as: [1884] SLR 21_290, [1884] ScotLR 21_290
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SCOTTISH_SLR_Court_of_Session
Page: 290↓
Court of Session Inner House First Division.
[Sheriff of Stirlingshire.
v.
Facts:
An action of damages for slander, raised by a bankrupt pursuer whose trustee declines to sist himself, is, though said to be raised for vindication of character, within the ordinary rule that a pursuer in such circumstances must find caution for expenses, but it is within the discretion of the Court to dispense with such caution being found. Circumstances in which held that an undischarged bankrupt, whose trustee refused to sist himself, was not entitled to sue an action for defamation of character without finding caution for expenses.
This was an action in the Sheriff Court of Stirlingshire at Falkirk, at the instance of Patrick Clarke, Glenyards, Greenhill, against C. W. M. Muller, Glenyards, Greenhill, concluding for £3 of damages in respect the defender had illegally deprived the pursuer of the use of certain premises let to him, and for £500 in name of damages for defamation of character.
The pursuer averred that on a date mentioned, the defender, who was his landlord, assembled his tenants at Glenyards farm, and read to them a letter purporting to have been written by the pursuer complaining of trespassers; that the defender then said in presence of certain persons—“Isn't that a nice complaint from a d-d scamp like that, that ran away from his former place at 12 o'clock at night without paying his rent, and that steals anything he can get about the place;” and stated that pursuer was a dishonest and dangerous person, and that “they,” meaning pursuer and his family, were “bad” people. Further, that the defender, on a date mentioned, and in presence of certain persons named, said that the pursuer was a member of and belonged to a secret society, meaning thereby that the pursuer was a disreputable person and belonged to an illegal society.
The pursuer was an undischarged bankrupt, and the trustee on his sequestrated estate refused to sist himself as a party to the case.
The Sheriff-Substitute ( Bell) ordained the pursuer to find caution for the expenses of process within a certain time.
“ Note.—The general rule that a sequestrated bankrupt is not allowed to proceed as pursuer in an action without finding caution for expenses has been fully recognised—Bell's Com., 7th ed., vol. ii. p. 324–5, and cases therein quoted; also Stephen v. Skinner, May 31, 1860—and although it lies within the discretion of the Court to allow an exception from the general rule, the Sheriff-Substitute
Page: 291↓
is able to see no cause in the circumstances of the present case for a departure from the general rule. The grounds of action are not exclusively for vindication of character, and the pursuers' case otherwise as disclosed in the record does not warrant the Sheriff-Substitute in allowing the defender to be involved in an expensive litigation without having security for the expenses of process.” On appeal the Sheriff ( Gloag) adhered.
When the period for finding caution had expired, the Sheriff-Substitute, in respect the pursuer had failed to find caution, dismissed the action, to which interlocutor the Sheriff adhered.
The pursuer appealed to the Court of Session, and argued that although divested of his estate, he was entitled to vindicate his character without finding caution although he was an undischarged bankrupt— Bell v. Anderson, February 25, 1862, 24 D. 603.
The respondent admitted that a defender in similar circumstances would not be bound to find caution— Buchanan v. Stevenson, Dec. 7, 1880, 8 R. 220, but argued that pursuer was bound to find caution for expenses— Home v. Sanderson & Muirhead, January 9, 1872, 10 Macph. 295. Even if the appellant got damages they would fall into his bankrupt estate — Jackson v. M'Kechine, Nov. 13, 1875, 3 R. 130.
At advising—
I was under the impression that there was one exception to this rule, namely, that if the action was one for vindication of character the pursuer was entitled to bring it without fulfilling the condition of finding caution for expenses. But I am satisfied that the exception has not been established. It is within the discretion of the Court to say whether in the circumstances of a particular case the pursuer may be allowed to go on without finding caution for expenses. That, however, is a discretion which is to be used very carefully, and it is only in very exceptional cases that the Court will dispense with the finding of caution.
Having considered the whole circumstances of the case, I am of opinion that it is not one in which the Court should use that discretion in favour of the pursuer.
The Court refused the appeal.
For the Appellant—Party.
Counsel for Respondent — R. V. Campbell. Agent— A. Wylie, W.S.