Ramsay v Stenhouse and Grant
| Jurisdiction | Scotland |
| Judgment Date | 11 December 1847 |
| Date | 11 December 1847 |
| Docket Number | No. 54 |
| Year | 1847 |
| Court | Court of Session (Inner House - First Division) |
Lord Murray.
Expenses.—
AN action of damages was brought by Ramsay against Stenhouse. While the process was pending, and before the record was closed, the pursuer Ramsay had raised a process of cessio bonorum, in which, after making the usual cession of all his effects to a trustee for creditors, he obtained a decree. The trustee declined to accept the trust, and the creditors refused to sist themselves as parties to the action. When the case was about to be sent to avizandum, previous to closing the record, the defenders moved that the action should be dismissed, in respect the trustee or creditors refused to take up the case. The pursuer (who, notwithstanding his circumstances, still insisted in the process) then offered to find caution for all the expenses which should in future be incurred in the cause,—which the defenders refused to accept, unless caution should also be found for the past expenses also.
The Lord Ordinary verbally reported the case. His Lordship stated that it was nearly the same as that of Maxwell v. Mercer.1 In that case the Court found that the pursuer was bound to find caution de futuro; and the circumstances of the present one differed only in this, that the pursuer here is not merely under ultimate diligence, but is undeniably bankrupt. He has no trustee to take up the case; and while he admits he must find caution, he maintains that it must be only de futuro This the Lord Ordinary considered to be the fair import of the case of Maxwell; but as it was disputed that that decision fixed any general principle, his Lordship had thought it proper to bring the point before the Court.
The defenders maintained that there was a difference between the two cases. In Maxwell's case, the action had been going on for a number of years, and a large amount of expenses had been incurred. To have compelled the pursuer to find caution for these, would have been to put him out of Court. Again, he was not bankrupt, as the pursuer here is; there was only in Maxwell's case a constructive admission of insolvency.
A pursuer of an action having raised a cessio, in which, after assigning his property to his creditors, he obtained decree,—Held bound to find caution for the future expenses of the action, but not for those incurred prior to his bankruptcy.
1 March 3, 1847 (ante, vol. ix., p. 797).
To continue reading
Request your trial