Scottish Court of Session Decisions

This was an action at the instance of Thomas Stevenson, builder and joiner, Edinburgh, against J. B. W. Lee, S.S.C. for payment of (first) the sum of £324, 0s. 10d. for work alleged to have been done and goods supplied on the employment of the defender; (second) the sum of £15 as remuneration for managing certain properties of the defender; and (third) the sum of £40 for outlays and trouble following on an alleged agreement between the pursuer and the defender in regard to subjects in the Lawnmarket. The summons also concluded for declarator that certain subjects in Tay Street, North Merchiston, Edinburgh, had been conveyed by the pursuer to the defender in security only of sums advanced or paid by him as cautioner for the payment of a composition offered by the pursuer under the sequestration of his estate, and that the defender was bound to convey the subjects to the pursuer on receiving payment of the balance due on the accounts between them. There were also conclusions for accounting.

The defender's pleas were as follow—“(1) Nihil debit. (2) The pursuer not having duly performed in a tradesmanlike manner, or completed, the work he undertook to perform for the defender, is not entitled to the contract price. (3) There was no agreement binding on the defender to feu to the pursuer the Lawnmarket ground, and the pursuer gave up any fancied right to the feu. (4) The subjects in Tay Street having been purchased by the defender at the advertised upset price, which was a full one, and the pursuer having consented to the disposition, he is now precluded from challenging it, except by reference to the defender's writ or oath. (5) Compensation.”

The Lord Ordinary ( Lee) on 3d February 1886 pronounced this interlocutor:—“On the motion of the pursuer, and in respect that it is not disputed that the defender since the closing of the record has executed a trust-deed divesting himself of his whole estates for behoof of creditors, appoints the defender “to find caution for the expenses of process, and that within fourteen days from this date: Meantime adjourns the diet of proof to a day to be afterwards fixed; and, on the defender's motion and no objections being stated, grants leave to reclaim against this interlocutor.

“ Note.—Although this case does not fall under the rule requiring that a pursuer, being a sequestrated bankrupt, must find caution for expenses, I think that it is a question for the discretion of the Court whether the circumstances do not entitle the pursuer to demand that the defender be ordained to find caution as a condition of going on with the defence. That defence is a special one, and imposes a considerable onus on the defender. But he has voluntarily, and pending the litigation, dispossessed himself of his whole means and estates. I think that the pursuer's motion is reasonable, and should be granted.”

The defender reclaimed, and argued—The circumstances were not such as to justify an order on the defender to find caution— Taylor v. Rothwell and Others, March 1, 1833, 6 W. and S. 301; Stephen v. Skinner, May 31, 1860, 22 D. 1122; M'Alister v. Swinburne, November 7, 1873, 1 R. 166.

Pursuer's authorities— Grieve v. Cunningham, December 17, 1869, 8 Macph. 317; Miller v. M'Intosh, March 18, 1884, 11 R. 729; Goudy on Bankruptcy, 355.

The trustee did not sist himself as a party.

The Court, after the argument, ordered a statement to be lodged showing the position of the defender's affairs. A joint-minute was accordingly lodged which set forth the following facts:—“By the said trust-deed the defender assigned, disponed, conveyed, and made over to and in favour of William Alexander Wood, chartered accountant, Edinburgh, whom failing such other person or persons as should be appointed in manner mentioned in the deed, as trustee for behoof of the defender's whole lawful creditors at the date thereof who should accede thereto, or be assumed into the benefit of the trust, and to the assignees of the said trustee or trustees, all and sundry his whole means, estate, and effects, heritable and moveable, real and personal, of whatever kind or wherever situated, then belonging or which might belong or accrue to him during the subsistence of the trust, with the whole writs, titles, and instructions thereof, and all that had followed or could competently follow thereon.

“The trust purposes are, generally, for distribution of the defender's estate among his creditors on the same footing as if an award of sequestration had been made under the Bankruptcy Statutes.

The deed contains the following special provision—‘Further, in the event of any of my creditors delaying or refusing to accede to this trust, or taking separate measures, or pursuing diligence against me, or in the event of any other circumstances arising which shall render the step expedient in the judgment of the trustee, it shall be in the power of the trustee or trustees acting for the time to apply for sequestration under the Bankruptcy Acts on my behalf, and in such event or events I hereby constitute and appoint such trustee or trustees my mandatories for that purpose.’

The secured creditors of the defender have either intimated their accession to the trust-deed or are in possession of the subjects granted in security under actions of maills and duties. About half of the unsecured creditors have acceded, but the remainder have not, and one creditor, whose claim amounts to £400, refuses to accede, but has done no diligence against the estate. One or two other unsecured creditors of small amount also refuse to accede.

(2) Accession by Pursuer to Defender's Trust-Deed.

The pursuer accedes to the said trust-deed. His only claim is that sued for in the present action.

(3) Possession and Administration of the Defender's Estate by the Trustee.

The trustee has entered upon the possession and management of the defender's estates, heritable and moveable. He has sold and realised for behoof of the creditors the defender's moveable estate, and has drawn rents of the heritage.

Further, he has completed a title by infeftment in the heritable subjects in Tay Street, Edinburgh, the ownership of which is claimed by the pursuer in this action. He has not completed a title to any other heritable subject.

The trustee has sisted himself as pursuer in

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one action pending at the instance of the truster (the present defender).”