Johnstone v. Henderson [1906] ScotLR 43_486 (15 March 1906)

Johnstone v. Henderson [1906] ScotLR 43_486 (15 March 1906)

A defender who has executed a trust deed for creditors is not, in the absence of special circumstances, to be ordered to find caution for expenses as a condition of proceeding with a reclaiming note. The general rule does not require defenders to find caution, and the mere granting of a trust deed does not constitute a special circumstance.

Citation
[1906] ScotLR 43_486
Parties
Pursuer/respondent: Alfred Johnstone; Defender/reclaimer: William Henderson
Jurisdiction
Scotland
Judgment Date
15 March 1906
Procedural Posture
Civil / Reclaiming Motion (appeal) After Decree in Outer House
Outcome
note refused
Legal Topics
Caution for Expenses, Trust Deed for Creditors, Rights of Insolvent Defenders
Civil Procedure Insolvency Caution for Expenses Trust Deed for Creditors Rights of Insolvent Defenders

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Parties

Alfred Johnstone

Pursuer/respondent

William Henderson

Defender/reclaimer

Procedural Posture

Civil / Reclaiming Motion (appeal) After Decree in Outer House

Legal Issues

  1. 1 Whether a defender who has executed a trust deed for creditors should be ordered to find caution for expenses as a condition of proceeding with a reclaiming note.

Ratio Decidendi

A defender who has executed a trust deed for creditors is not, in the absence of special circumstances, to be ordered to find caution for expenses as a condition of proceeding with a reclaiming note. The general rule does not require defenders to find caution, and the mere granting of a trust deed does not constitute a special circumstance.

Court Disposition

note refused

Orders

  • The note for caution for expenses is refused.
  • Expenses modified to two guineas awarded against the applicant.