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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Mackay v. Boswall-Preston and Another [1915] ScotLR 79 (12 November 1915)
URL: http://www.bailii.org/scot/cases/ScotCS/1915/53SLR0079.html
Cite as: [1915] ScotLR 79, [1915] SLR 79

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SCOTTISH_SLR_Court_of_Session

Page: 79↓

Court of Session Inner House Second Division.

(Single Bills.)

Friday, November 12. 1915.

[ Lord Anderson, Ordinary.

53 SLR 79

Mackay

v.

Boswall-Preston and Another.

Subject_1Expenses
Subject_2Process
Subject_3Caution for Expenses
Subject_4Reclaiming Note — Sequestration of Successful Defender.
Facts:

In an action for payment of £120 the defenders were assoilzied and the pursuer reclaimed The defenders' estates were thereafter sequestrated and their trustee declined to sist himself as a party to the action. The pursuer having moved the Court to ordain the defenders to find caution, the Court refused the motion.

Headnote:

James John Mackay, insurance manager, Harrow, Middlesex, pursuer, brought an action against George Houston BoswallPreston and another, carrying on business as motor engineers at 10 Queensferry Street, Edinburgh, defenders, for payment of £120 sterling as commission due to him in procuring a loan of £12,000 for the defenders. The defenders pleaded, inter alia—“(2) The loan of £12,000 not having been obtained

Page: 80↓

through the agency of the pursuer, the defenders should be assoilzied.” On 29th October 1914 the Lord Ordinary ( Anderson) sustained this plea, and assoilzied the defenders from the conclusions of the summons. The pursuer reclaimed, and the defenders were sequestrated in December 1914. The Court thereafter ordered intimation to be made to their trustee, who declined to sist himself as a party to the action.

The pursuer moved the Court in Single Bills to ordain the defenders to find caution.

Argued for the pursuer and reclaimer——The defenders should be ordained to find caution. This was not the case of a private trust deed, where the Court would not interfere, but of a sequestration which had been expressly distinguished as regards the requirements of finding caution— Johnstone v. Henderson, 1906, 8 F. 689, 43 S.L.R. 486; Allan and Others ( Smith's Trustees) v. M'Cheyne, 1879, 16 S.L.R. 592; Stevenson v. Lee, 1886, 13 R. 913, 23 S.L.R. 649.

Argued for the defenders and respondents—The rule was clearly established that a bankrupt defender was not bound to find caution— Taylor v. Rothwell and Others, 1833, 6 W. and S. 301; Ferguson v. Leslie, 1873, 11 S.L.R. 16; Mackay's Manual, p. 169. There was no case where a successful defender had been called upon to find caution.

 Judgment:

Lord Justice-Clerk—In this case it seems to me that nothing has been stated that should take the case out of the scope of what was said in Taylor's case. The defenders have been successful in their defence, and have been assoilzied with expenses; and now the pursuer—he being the reclaimer, seeking to overturn the judgment of the Lord Ordinary—asks that they should be ordained to find caution because they have become bankrupt since the date of the Lord Ordinary's interlocutor. I think on the authorities we ought not to grant this motion.

Lord Dundas concurred.

Lord Salvesen—I am quite of the same opinion. I think it is only in very exceptional cases indeed that a defender is ordained by the Court to find caution simply on the ground that he has become bankrupt and has a trustee administering his estates. But I know of no case where a successful defender has been ordained in the Inner House to find caution, and I should be very slow indeed to assist in establishing such a precedent.

Lord Guthrie—If the rule in Taylor is invariable, Mr Morton must fail; but even if it lays down only the usual practice he has suggested no circumstances whatever to take this case out of the usual practice.

The Court refused the motion.

 Counsel:

Counsel for the Pursuer and Reclaimer— Morton. Agent— J. M'Kie Thomson, S. S. C.

Counsel for the Defenders and Respondents— Mackenzie Stuart. Agents— Balfour & Manson, S.S.C.

 1915

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URL: http://www.bailii.org/scot/cases/ScotCS/1915/53SLR0079.html