Scottish Court of Session Decisions

On 27th July 1864, John Rogerson, who possessed considerable landed property in Wamphray, Dumfriesshire, died leaving a trust-disposition and settlement dated 7th December 1859. By this trust-disposition and settlement he left certain lands to his trustees, for the purpose of receiving the rents thereof and dividing them equally between two of his sons. He also declared that neither of his sons should have power to sell the lands or to burden them with debt, nor should the lands or rents be attachable by creditors, nor should his sons have power to assign the rents or produce of the lands except by way of provision in a marriage-contract. In 1878 the affairs of John Kirkpatrick Rogerson, second son of the truster, and one of the sons between whom the said rents were to be divided, became embarrassed and his estates were sequestrated. John Rorrison was appointed trustee in the sequestration. Shortly after the sequestration—a difference having arisen as to whether the interest of Rogerson in his father's estate fell under the sequestration — Rogerson executed an assignation in favour of Rorrison as trustee, whereby he assigned to him all the rents and sums of money that might become payable to him out of the lands left for that purpose by his father's trust-disposition. The trustee allowed the bankrupt an alimentary provision, and applied the surplus income to the reduction of his debts.

Rogerson and his wife and children raised this action for reduction of the assignation to his trustee, on the ground that it was ultra vires of him to grant such an assignation, and in contravention of the trust-disposition and settlement under which he had acquired right to the rents as an alimentary provision.

The trustee on the sequestration lodged defences and pleaded—“(2) The pursuer Joseph Kirkpatrick Rogerson being an undischarged bankrupt, ought to be ordained to find caution for expenses.”

Argued for pursuer—The question of caution is one within the discretion of the Court, In the case of an undischarged bankrupt caution is not always necessary, and the circumstances of this case were exceptional. The action was against the trustee, to reduce the conveyance to the pursuers’ funds— Ritchie v. M'Intosh, June 2, 1881, 8 R. 747.

The Lord Ordinary refused to order the pursuer to find caution.

“ Note.—If this had been the case of an undischarged bankrupt suing the trustee in his sequestration, on the ground that a surplus remained out of his estate after his debts had been paid, I should have ordered him to find caution, because I could not give any sanction to a custom which would enable any bankrupt to put pressure on his trustee. But here although the pursuer has been sequestrated, that does not seem to have been considered enough to put the trustee in possession of his estate, and the trustee has accordingly come into possession of the bankrupt's property by a voluntary assignation. I think that I have sufficient authority to enable me to dispense with caution, and I do so the more readily on the ground that there is here at least one other pursuer who might be made liable in expenses.”