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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Robertson v. M'Caw [1911] ScotLR 577 (09 March 1911)
URL: http://www.bailii.org/scot/cases/ScotCS/1911/48SLR0577.html
Cite as: [1911] SLR 577, [1911] ScotLR 577
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SCOTTISH_SLR_Court_of_Session
Page: 577↓
Court of Session Inner House First Division.
[
v.
Facts:
A wife who had obtained decree of divorce against her husband brought an action against him for payment of her legal rights. The defender haring subsequently left Scotland, the Court, in view of the fact that he had no estate therein, and that he was disposing of his estate in Ireland to the pursuer's prejudice, ordained him to find caution for expenses.
Mrs Margaret G. Robertson, formerly M'Caw, Maxwell Terrace, Glasgow, brought an action against her divorced husband Daniel M'Caw, printer, then residing at Dunallan, Bearsden, in which she sought decree (1) that she was entitled to her legal rights in his estate as at 20th July 1907 (the date of the decree of divorce), and (2) that the defender should be ordained to produce an account of his whole moveable estate in order that the pursuer's jus relictæ might be ascertained; or otherwise to make payment to her of the sum of £2000 as the amount thereof.
The defender pleaded, inter alia—“(3) The defender having had at the date of said decree no moveable estate available for payment to the pursuer of her jus relictæ, is entitled to be assoilzied from the conclusions for accounting and payment.”
On 8th December 1910 the Lord Ordinary (
On 24th December 1910 the Lord Ordinary, on the statement of the pursuer's counsel that the defender had left Scotland and was disposing of his estate to the pursuer's prejudice, ordained him to find caution for expenses within fourteen days. The defender having failed to do so, his Lordship decerned against him for the sum of £551 odd—the amount to which the petitory conclusion had been restricted by minute.
The defender reclaimed, and argued—A defender was not bound to find caution unless (1) he were practically pursuer, or (2) had been divested of his estate. The reclaimer was in neither of these categories, and therefore was not bound to find caution. He cited Taylor v. Fairlie's Trustees (1833), 6 W. & S. 301, at p. 316, and Johnstone v. Henderson, March 15, 1906, 8 F. 689, 43 S.L.R. 486.
Counsel for the pursuer stated the following facts—That since the action was raised the defender had left Scotland; that his only assets so far as known to the pursuer were the shares above referred to; that said company was registered in Ireland; that meantime it was not competent for the pursuer to attach these shares by arrestment on the dependence of the action or by any analogous process in Ireland; that 200 of the shares had been transferred by the defender to his present wife (in respect of adultery with whom the pursuer had obtained divorce), and that the said shares had been charged with the sum of £200 against all dividends accrued or to accrue. In support of his statement he produced letters from the defender agent in London to the secretary of the company relative to the transfer of the shares. He argued— Esto that in general a defender
Page: 578↓
The Court (the Lord President, Lord Johnston, and Lord Mackenzie) continued the case for a week in order that the defender might have a further opportunity of finding caution, and on his failure to do so, adhered, refused the reclaiming note, and decerned. No opinions were delivered.
Counsel for Pursuer (Respondent)— J. R. Christie. Agents— Cumming & Duff, S.S.C.
Counsel for Defender (Reclaimer)— Sandeman, K.C.— Guild. Agents— M. J. Brown, Son, & Company, S. S. C.