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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Star Fire and Burglary Insurance Co. v. C. Davidson, & Sons [1902] ScotLR 39_768 (16 July 1902)
URL: http://www.bailii.org/scot/cases/ScotCS/1902/39SLR0768.html
Cite as: [1902] ScotLR 39_768, [1902] SLR 39_768
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SCOTTISH_SLR_Court_of_Session
Page: 768↓
Court of Session Inner House Second Division.
[Sheriff Court at Aberdeen.
v.
Facts:
The Companies Act 1862, section 69, enacts as follows:—“Where a limited company is plaintiff or pursuer in any action, suit, or other legal proceeding, any judge having jurisdiction in the matter may, if it appears by any credible testimony that there is reason to believe that if the defendant be successful in his defence the assets of the company will be insufficient to pay his costs, require sufficient security to be given for such costs, and may stay all proceedings until such security is given.”
A limited company having been the successful pursuers of an action in the Sheriff Court, the defenders appealed to the Court of Session, and, the company having gone into liquidation, moved the Court to ordain the respondents in the appeal to find caution. The Court refused the motion on the ground that in the appeal the company was in the position of defending itself.
The Star Fire and Burglary Insurance Company, Limited, 248 West George Street, Glasgow, brought an action in the Sheriff Court at Aberdeen against C. Davidson & Sons, Limited, Mugiemoss, Bucksburn, Aberdeen.
The Sheriff-Substitute ( Robertson), and on appeal the Sheriff ( Crawford) granted decree as craved.
The defenders appealed to the Court of Session.
Shortly before the judgment appealed from was pronounced the pursuers had gone into liquidation, and the appellants lodged a note in the appeal craving the Court to ordain the respondents to find caution, under the 69th section of the Companies Act 1862 (25 and 26 Vict. cap. 89), which is quoted in the rubric.
Argued for the appellants—The respondents were pursuers of the action, and the fact that they had gone into liquidation was sufficient testimony that there was reason to believe that if the defenders were successful in the appeal the assets of the respondents would be insufficient to pay expenses. The appellants were therefore entitled to the protection of the 69th section of the Act— Northampton Coal, Iron, and Waggon Company v. Midland Waggon Company, 1878, 7 Ch. D. 500; Pure Spirits Company v. Fowler, 1890, 25 QBD 235.
Argued for the respondents—A bankrupt defender was not bound to find caution,
Page: 769↓
The respondents, though pursuers in the action, were defenders in the appeal. The provision of section 69 that the judge might “stay proceedings” showed conclusively that the condition of finding caution was to be imposed only on the pursuers of the issue before the Court.
The Court refused the motion.
Counsel for the Pursuers and Respondents— Graham Stewart. Agents— Clark & Macdonald, S.S.C.
Counsel for the Defenders and Appellants— Macfarlane. Agents— Tawse & Bonar, W.S.