Scottish Court of Session Decisions

In August 1903 Sir John George Tollemache Sinclair raised an action against the Glasgow and London Contract Corporation, Limited, for payment of over £600 as arrears of rent under a lease to the defenders of a slate-quarry belonging to the pursuer, which lease the pursuer averred had come to an end.

In December 1903 the Glasgow and London Contract Corporation, Limited, raised an action against Sir J. G. T. Sinclair for declarator that they were still his tenants under the lease.

In the first action the Lord Ordinary ( Kyllachy) on 5th February 1904 decerned against the defenders in terms of the conclusions of the summons, and found the pursuer entitled to expenses.

In the second action the Lord Ordinary on 20th February 1904 pronounced the following interlocutor:—“Finds it sufficiently instructed that if the defender is successful in his defence, the assets of the company will be insufficient to pay his costs: Finds therefore that in these circumstances the provisions of the 69th section of the Companies Act 1862 are applicable: Therefore appoints the pursuers to consign or find security for the sum of £100 to cover the expenses of the defender up to the stage of the allowance of proof.” The pursuers found security as ordered and the action proceeded, and on 8th June 1904 the Lord Ordinary assoilzied the defender and found him entitled to expenses.

The Glasgow and London Contract Corporation, Limited, reclaimed against the judgment of the Lord Ordinary in both actions.

Page: 609↓

In the second action, on a note being presented by the respondent, the Court ordained the pursuers and reclaimers to consign or find security for £100 within ten days as a condition of being allowed to proceed with the reclairning-note.

In the first action the respondent also presented a note to the Court asking that the reclaimers should be ordained to consign or find security for £100 as a condition of proceeding with the reclaiming-note.

Argued for the respondent in support of his note. The reclaimers, although defenders in the first action, became on reclaiming pursuers within the meaning of section 69 of the Companies Act 1862— Star Fire and Burglary Insurance Company v. Davidson & Sons, July 16, 1902, 4 F. 997, 39 S.L.R. 768. The finding of the Lord Ordinary in the second action showed that there was evidence that the assets of the company would be insufficient to pay costs in the event of the defenders being unsuccessful in their reclaiming-note.