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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Oliver v. Robertson [1869] ScotLR 7_44 (30 October 1869) URL: http://www.bailii.org/scot/cases/ScotCS/1869/07SLR0044.html Cite as: [1869] ScotLR 7_44, [1869] SLR 7_44 |
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Page: 44↓
The pursuer of an action became bankrupt and was ordained to find caution for expenses. The cautioner provided ultimately withdrew, whereupon the motion for new caution was renewed by the defender. Held (upon evidence that the defender had been instrumental in causing the withdrawal of the first cautioner) that he was barred from maintaining his equitable right to demand caution from the bankrupt.
This case, which was an action at the instance of Andrew Oliver, draper, Kilmarnock, against William Robertson, flesher there, was brought for the purpose of setting aside certain judgments in a cause in the Sheriff Court of Ayrshire. The pursuer some time ago became bankrupt, and was ordained to find caution for expenses. He found caution in the person of a cousin of his own, but the cautioner subsequently intimated his withdrawal. The defender thereupon moved for new caution. This the pursuer opposed, on the ground that the defender had induced the former cautioner to withdraw by approaching him with exaggerated statements of the risk he ran, and had thus barred himself personali exceptione from insisting for new caution. A minute having been put in by the pursuer stating the facts, and a letter having been produced from the former cautioner, written at the time of the withdrawal, and giving an account of
Page: 45↓
his conversation with the defender, the Court, in respect of said letters and the statements made at the bar, held that there was enough to show that the defender had induced the original cautioner to withdraw, and that was an illegitimate proceeding, which must have the effect of depriving the defender of his equitable right to demand caution from the bankrupt.
Counsel for Pursuer— G. H. Pattison. Agent— James Somerville, S.S.C.
Counsel for Defender— Orr Paterson. Agents— J. & A. Peddie, W.S.
