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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Buchanan v. Weir [1876] ScotLR 14_18 (18 October 1876)
URL: http://www.bailii.org/scot/cases/ScotCS/1876/14SLR0018.html
Cite as: [1876] SLR 14_18, [1876] ScotLR 14_18

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SCOTTISH_SLR_Court_of_Session

Page: 18↓

Court of Session Inner House First Division.

Wednesday, October 18.

[ Lord Young, Ordinary.

14 SLR 18

Buchanan

v.

Weir.

Subject_1Process
Subject_2Caution
Subject_3Expenses.
Facts:

In an action of partnership accounting decree was given by the Lord Ordinary against the defender, which if it became final would have the effect of rendering, him insolvent. On his presenting a reclaiming note, held that the circumstances did not warrant the Court in ordaining him to find caution for expenses.

Headnote:

This was an action of accounting, in which Alexander Weir, manufacturer, Ayr, was pursuer, and Moses Buchanan, commission agent, Glasgow, was defender. The matters in dispute had arisen out of a number of cash transactions—bills and promissory notes, &c.—which had passed between the two, and after a remit to an accountant to examine the accounts and vouchers the Lord Ordinary pronounced decree against the defender for £1510. The defender reclaimed against this judgment, and when the reclaiming note was called in the Single Bills the pursuer moved that the defender be ordained to find caution, on the ground that he was insolvent (cf. Maxwell v. Maxwell, 3d March 1874, 9.D. 797).

The defender admitted that the effect of the decree of the Lord Ordinary if it became final would be to render him insolvent, but, on the other hand, if that interlocutor was recalled, and judgment given in terms of his pleas-in-law, he would not be insolvent.

At advising—

 Judgment:

Lord President—I understand that if the defender had been successful in this action, and had obtained judgment in terms of his pleas-in-law, he would not be insolvent, and that is not contradicted. His position now is that he is provisionally insolvent. It is a peculiar case, and I am not aware that upon that ground we have ever ordained a defender to find caution. The circumstance that the question at issue is one of a partnership accounting is material. Such questions are generally difficult, and require a great deal of trouble to extricate, and judges frequently differ upon them; It must not be taken for granted in the discussion of this motion that

Page: 19↓

the interlocutor of the Lord Ordinary is right. I think this is a weak case for ordaining a defender to find caution, and that the motion must be refused.

Lord Deas and Lord Mure concurred.

 Counsel:

Counsel for Pursuer— Scott. Agent— John Galletly, S.S.C.

Counsel for Defender— C. J. Guthrie. Agents— Boyd, Macdonald, & Lowson, S.S.C.

 1876

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URL: http://www.bailii.org/scot/cases/ScotCS/1876/14SLR0018.html