Fraser v. November 24, 1923. inducia decree was taken in the Undefended conversation, I regard his statement as singu- 2nd Div. Roll. Arrestments were used on the decree, larly ineffective. I see no reason to think that and an action of furthcoming brought. No the defender's agents, having regard to their M'Murrich. jurisdiction had been founded and this latter own client's interest, acted with any improaction was dismissed. The present defender priety in the course they followed, and they then brought an action to have the decree appear to me to be in no way to blame for the which had been obtained against him in absence position in which pursuer now finds himself. reduced. The pursuer did not defend and the present defender was found entitled to expenses, which amounted to about £17. The pursuer having failed to pay this inconsiderable sum, his estates were sequestrated. The defender is not, as the Lord Ordinary thought, the only creditor, claims, largely in excess of the defender's, having also been lodged by two other creditors, viz. two firms of law agents who had acted for the pursuer. I have recited at length the various legal proceedings which preceded the present action because, as I understood the argument of the respondent, he sought to establish that the attitude of the defender therein had been in some way unjust and oppressive. In effect, I think I am entitled to say that it was contended that he had from the first so conducted himself, and had deliberately so conducted himself, as to mislead the pursuer into following the course he did, and so brought about his sequestration. If that had been so if there were reasons for thinking that the pursuer had been trapped by the defender-then there might have been some justification for giving him the relief which he seeks. But I am unable to discover any ground whatever for reaching that conclusion. In my opinion, the difficulty in which the pursuer now finds himself is entirely due to his own illconsidered action in raising the Sheriff Court proceedings. The slightest enquiry beforehand would have enabled him to ascertain that the Sheriff Court had no jurisdiction; but further on the facts as we now know them, so far from being in any way misled by the defender or his agents, the decree was taken in the Sheriff Court in the very teeth of a warning that the Sheriff had no jurisdiction. I refer in particular to a note of a telephone message to the pursuer's agents by the defender's agents on the 24th February, the eve of the expiry of the induciæ of the service of the Sheriff Court writ in these terms: "Attendance at phone with Mr Webster with reference to summons served upon our insured, explaining to him that insured was in West Africa, and pointing out the risk which would arise in the event of the pursuer taking decree against him." In answer to this, all that the pursuer states in the note lodged by him is "in particular he denies that the account of the telephone conversation of 24th February 1922 correctly sets forth what passed between the parties mentioned." But, as he does not say what is the correct version of the Accordingly, the pursuer has failed, in my judgment, to shew any cause for departing from the general rule, and I agree that we should recall the Lord Ordinary's interlocutor, and ordain the pursuer to find caution. The Lord Justice-Clerk (Alness).-I am authorised by Lord Hunter [who was absent at advising] to say that he concurs in the judgment proposed. Lord Anderson.-The general rule, as was pointed out in the cases of Clarke (11 R. 418) and Thom (15 R. 780), is that a pursuer, whose estates have been sequestrated, must find caution as a condition of being allowed to sue an action. The authorities shew that this rule has been rigidly applied in practice and that exceptions to its application are rarely admitted. The Lord Ordinary has decided that this case is exceptional for two reasons which are stated in his opinion. The first is that the pursuer's mistake in suing in the Sheriff Court was an innocent one. There is a twofold rejoinder to this ground of judgment: (1) it is irrelevant; and (2) it is unfounded in fact. (1) It is, generally speaking, irrelevant to enquire into the origin of a pursuer's bankruptcy; the only relevant consideration is, does it exist in fact? In particular it seems to me to be a circumstance of no materiality that the pursuer's sequestration took place during the currency of the litigations. A qualification of the proposition, that it is irrelevant to enquire into the origin of bankruptcy, may arise in connection with the conduct of a defender. If it could be shewn that the bankruptcy had been brought about by improper conduct on the part of the defender, the Court would not allow him to profit by this. If, for example, in the present case, the defender's agents had done anything to induce the pursuer to bring his Sheriff Court action, as by representing that the defender was resident in Dumbartonshire at the date of service, the Lord Ordinary's interlocutor might well have been justified. But we know now that the defender and his agents did nothing of that character. They were unaware of the proceedings until the inducia of the citation had almost expired. (2) We also now know that what was done was not a mistake or blunder, but a wilful act of professional negligence on the part of the November 24, 1928. 2ND DIV. pursuer's then agent. This appears from the Fraser v. information supplied to the Court by the M'Murrich. defender's advisers since the case was taken to avizandum. I have not left out of account the averments made in the last note lodged for the pursuer, which do not appear to me to be contradictory of or inconsistent with the statements in Mr Mackay's communication addressed to your Lordship in the chair. On the last day of the inducia of citation (24th February) the defender's agents informed the pursuer's agent that there was no jurisdiction. Despite this warning, the pursuer's agent took decree in absence, and had his account of expenses taxed. The suggestion is that the defender and not the pursuer should bear the consequences of this act of professional negligence. That appears to me to be an extravagant suggestion. The second reason relied on by the Lord Ordinary we now know to be unfounded in fact. It now appears that the defender is not the pursuer's only creditor, but that there are two other creditors whose claims exceed £100. The grounds on which the Lord Ordinary proceeded have thus been entirely displaced. It was urged, however, that his decision could be supported on other grounds. There is nothing in the nature of the action itself to take the case out of the ordinary rule. It has no specially personal feature, such as a desire to have character vindicated. It is a claim as for money due, and the pursuer would only have a radical or residuary interest in any decree which he might obtain. It was maintained, however, that the defender's agents were blameworthy as regards procedure, and that the defender should accordingly be deprived now of his legal rights. It was said that the defender's solicitors might have entered appearance in the Sheriff Courtaction and have pleaded "no jurisdiction" or have prorogated the jurisdiction of the Sheriff Court and fought out the merits of the action in that Court. It is true this might have been done, but I am of opinion that the defender's solicitors had no duty to do so. I go further and say that, had they taken either of those courses, they would have been in breach of the duty which they owed to their client. It is no part of a solicitor's duty to cover up or remedy the blunders of an opponent, far less to neutralise the effects of a wilful act of negligence. The duty of an agent in a litigation is to get his client out of it as speedily, as successfully, and with as little expense as possible. The defender's solicitors are in course of effecting that duty in the present case by the procedure they have followed. They were not only within their legal rights but they were in the proper discharge of their professional duty in acting as they have done. It would, in these circumstances, be, according to my opinion, a miscarriage of justice to penalise the defender and favour the pursuer. I therefore agree that the interlocutor of the Lord Ordinary should be recalled and the pursuer ordained to find caution. Counsel for Pursuer, Aitchison, K.C., Duffes; Agents, W. G. Leechman & Co., Solicitors.Counsel for Defender, Mackay, K.C., Gilchrist; Agents, Manson & Turner MacFarlane, W.S. W. R. G. ERRATUM. Page 109. Thomson's Executrix v. Littledale's Trustees. include the name of Lord Ormidale; his Lordship expressed his The Sederunt should concurrence in the opinion delivered by Lord Hunter. INDEX OF CASES ACCORDING TO NAMES OF PARTIES. Note.-The figures refer to the number of the Page, and not to the number of the Case. L signifies House of Lords Decision. O signifies Outer House or Bill Chamber Decision. J signifies Justiciary Court Decision. V signifies Lands Valuation Appeal Court and Valuation Appeal Court Decision. Abercrombie v. Edgar & Crerar Ltd., O 271. Abram Steamship Co. Ltd., Westville Shipping Co. Ltd. Adamson v. Adamson, O 105. Adamson v. Gillibrand, O 328, 442. Advocate, H.M., v. Savage, J 659. Advocate, Lord, Caledonian Railway Co. v., 66. Advocate, Lord, Lord Provost of Edinburgh v., 14. "Alconda," Owners of S.S., Owners of S.S. "Bogota "v., Alhambra (Leith) Ltd., Baird v., 749. Alva, Parish Council of, and the Minister-Minuters, 732. Anglo-Newfoundland Development Co. Ltd. (Owners of Archibald v. Plean Colliery Co. Ltd., J 641. Baird v. Alhambra (Leith) Ltd., 749. Baird, John Brown & Co. Ltd. v., 295, L 757. Baird, Wm., & Co. Ltd., Clelland v., 187. Baird, Wm., & Co. Ltd., Wilson v., 101. Ballard v. North British Railway Co., L 219. Burntisland Shipbuilding Co. Ltd. v. Weldhen, 192. Caldwell's Trs. v. Caldwell, 694. Caldwell's Trs. v. Caldwell and Others, O 11. Campbell, Mullen Ltd. v., O 497. Campbell's Trs., Porter v., 29, L 619. Cantiere San Rocco, S.A. (Shipbuilding Co.) v. Clyde Ship- building and Engineering Co. Ltd., L 624. Carr v. Port-Glasgow Burgh, 586. Cathcart's Trs. v. Bruce, O 722. Chalmers v. Glasgow Corporation, O 506. Ballingall & Son Ltd. v. Dundee Ice and Cold Storage Co. Chalmers Hospital (Banff) Trs.-Petrs., 63. Barclay, Curle & Co. Ltd., Glasgow Corporation v., L 605. Barr & Thornton Ltd., Breslin v., 38. Barrhead Magistrates, James Brownlie & Son v., 576. Beaton, Strathern v., J 636. Beattie, Richardson v., O 165, 440. Binnie v. Black, O 98. Black, Binnie v., O 98. Black v. John Williams & Co. (Wishaw) Ltd., 311. Charlesworth Peebles & Co. and Another, British "Clan Gordon," Owners of the, Standard Oil Co. of New "Clan Malcolm," S.S., et e contra, S.S. "Rowan "v., 208. Clyde Shipbuilding and Engineering Co. Ltd., Cantiere San Blackater, A. F. & J. C., et e contra, F. Craig & Co. Colville, D., & Sons Ltd., Assessor for the County of Ltd. v., 240. Blackwood, M'Carroll v., 96. Blair, Gates v., 257. Lanark v., V 289. Colville, D., & Sons Ltd., Purdie v., 539. Colville v. Inland Revenue Commissioners, 198. Colvin v. Colvin, O 728. Connell v. James Nimmo & Co. Ltd., 472. Craig, A. F., & Co. Ltd. v. A. F. & J. C. Blackater, et e contra, 240. Crawford Bros. v. Commissioners of Northern Lighthouses, O 689. Cromdale Parish Council, Glasgow Parish Council v., O 557. Crum Ewing, Ewing's Trs. v., 320. Cumming v. Parker, White & Co., O 455. Daily Record (Glasgow) Ltd., Lamond v., O 512. Debenham Ltd. v. M'Call, O 365. Del Sel, R. & N., James Scott & Sons Ltd. v., L 204. Dennis v. Aitchison, 568. Dick Lauder-Petr., 252. Dixon, Wm., Ltd., Fallens v., 700. Dixon, Wm., Ltd. v. Madden, L 499. Glasgow Domestic Training School Trs.-Petrs., 603. Glasgow Expanded Metal Co. Ltd. v. Anderson, 149. Gordon's Judicial Factor, Nakeski-Cumming v., 482. Grahamslaw, John, & Sons Ltd. v. James Veitch's Trs., et e contra, O 162. Grant, Johnson v., 501. Greig and Others-Petrs., O 434. Grieve v. Kilmarnock Motor Co. Ltd., 308. Groundland, MacDonald v., J 107. Haddington, Assessor for, Sharp v., V 287. Hamilton, Wm., (Motors) Ltd., Robinson v., 522. Harrison v. Mackenzie, J 565. Hendry v. M'Dougall, 154. Domestic Training School, etc., Glasgow, Trustees of Highet, Charlton & Bagshaw v., O 493. the-Petrs., 603. Dorie Steamship Co. Ltd.-Petrs., 339. Dowell's Exr., Meeres v., O 184. Downie's Trs., Hutchison's Trs. v., O 49. Hindhaugh, John, & Co. v. Robert Inch & Son, O 667. Holland v. Glasgow City Educational Endowments Board, O 687. Hovell, Wilson v., 704. Dumbarton County Council, Fergusson-Buchanan v., 747. Howman v. Russell, J 336. Duncan v. Inland Revenue, 167. Duncan v. Scottish Tube Co. Ltd., O 717. Dundee Combination Parish Council, Glasgow Parish Dundee Ice and Cold Storage Co. Ltd., Ballingall & Son Ltd. v., O 563. Laird Line Ltd. (Owners of S.S. "Rowan ") v. United States Shipping Board (Owners of S.S." West Camak"), 208. Lamond v. Daily Record (Glasgow) Ltd., O 512. Lanark, Assessor for the County of, v. D. Colville & Sons Ltd., V 289. Lanark, Assessor for the County of, Merry & Cuninghame Ltd., v., V 274. Lanarkshire Tramways Co. v. M'Naughton, 733. Law Shipping Co. Ltd. v. Inland Revenue, 742. Leith Salvage and Towage Co. Ltd., Nicholson v., 229. Leng, John, & Co. Ltd., Westwood v., O 725. Lilley, Buchanan v., O 125. Lindsay, Ayrshire County Council v., 460. Livingstone v. Strachan, Crerar & Jones, 525. Loudon, John, & Co. v. Elder's Curator Bonis, O 226. Macalister, Lord Advocate v., 259. M'Call, Debenham Ltd. v., O 365. M'Carroll v. Blackwood, 96. M'Carroll v. M'Kinstery, 96. M'Corquodale-Petr., 520. M'Crae v. Bryson, O 164, 672. M'Donagh v. Glasgow Corporation, O 485. Quinn, John Watson Ltd. v., L 499. R. v. R., O 45. Macdonald, Greenlees & Williams (Distillers) Ltd.-Petrs., Rae's Trs. v. Assessor for Dundee, V 284. 553. MacDonald v. Groundland, J 107. Macdonald v. Macdonald, O 694. Macdonald v. Singer Manufacturing Co. Ltd., 368. M'Donald's Tr., Stevenson v., O 451. M'Dougall, Hendry v., 154. MacElhinney v. Portland Forge Co. Ltd., 42. M'Ghee v. Glasgow Coal Co. Ltd., 120. M'Harg, S., & Son, Mitchell v., 425. M'Intosh v. Arden Coal Co. Ltd., 548. M'Kay, Jackson v., 151. Mackenzie, Harrison v., J 565. M'Kinlay v. Darngavil Coal Co. Ltd., L 203. M'Kinstery, M'Carroll v., 96. M'Laren, Smith v., J 652. M'Murrich, Fraser v., 757. M'Nair v. Glasgow Corporation, 171. M'Nally v. Tait, O 46. M'Naughton, Lanarkshire Tramways Co. v., 733. M'Neish, Faddes v., 237. Madden, Wm. Dixon Ltd. v., L 499. Maypole Dairy Co. Ltd., Patterson v., J 648. Meeres v. Dowell's Exr., O 184. Registrar-General for Scotland-Petr., 159. "Reresby," Owners of S.S., v. Owners of S.S." Cobetas," O 492, 719. Riach v. Smith, 314. Richardson v. Beattie, O 165, 440. Robinson v. Wm. Hamilton (Motors) Ltd., 522. Rodger v. Fife Coal Co. Ltd., 115. Ropner Shipping Co. Ltd., "Vitruvia" S.S. Co. Ltd. v., 400. "Rowan," S.S., v. S.S." Clan Malcolm," et e contra, 208. "Rowan," S.S., v. S.S. "West Camak," et e contra, 208. Russell, Howman v., J 336. Merry & Cuninghame Ltd. v. Assessor for the County of Sharp v. Assessor for Haddington, V 287. Lanark, V 274. North British Railway Co., Jardine v., O 55. North British Railway Co., Moore v., O 128. Singer Manufacturing Co. Ltd., Macdonald v., 368. Smith or Murison v. Murison, 408. Smith, Riach v., 314. Smith v. Stewart, J 652. Soutar, Kelso v., J 354. Soutar, Williamson v., J 354. Standard Oil Co. of New York v. Owners of the "Clan Strathern v. Beaton, J 636. Strathern, Townsend v., J 644. North British Railway Co., Wilsons & Clyde Coal Co. Ltd. Sutherland, Duke of-Petr., O 228. v., 2. Northern Lighthouses, Bros. v., O 689. Commissioners of, Crawford |