What Caution exigible from Foreigners in law suits. - How far their Attornies liable for them.
Roger O'Haggen, and William Alexander, his Attorney, v. Hugh Boyd
Date: 31 July 1761 Case No. No 6.
The Attorney for a foreigner liable in costs of suit for his constituent.
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Roger O'Haggen, an Irishman, brought an action before the Court of Session against Hugh Boyd, and constituted William Alexander merchant his attorney, or factor, as without an attorney he could not have been heard in his action.
He lost his suit, and was found liable in expenses; in which last part of the decerniture, his attorney was comprehended. Immediately after, Roger O'Haggen became insolvent.
William Alexander his attorney petitioned against that part of the judgment which found himself personally liable for costs of suit, merely because he lent his name and acted as attorney for O'Haggen. He contended, That he could not be liable personally, unless the defender had insisted, in initio litis, to have caution found for expenses, in case they were awarded.
Answered for Hugh Boyd; When a foreigner brings a suit here, he must give a mandate to an attorney, and the action goes on in the name of both, for this very reason, that it is impossible to get the expenses off the foreigner, whereas the native of this country is at hand; and accordingly the Court is in use to give expenses against the factor, when they are given against the constituent; Pringle contra Kennedy, No 4. p. 4643; 25th July 1739, Horn contra Robertson.
‘The Lords found Mr Alexander liable in costs of suit, conjunctly with his constituent.’
Act. M'Laurin.Alt. Dalrymple.Clerk, Gibson.
Fol. Dic. v. 3. p. 232. Fac. Col. No 57. p. 139.
*** In the same manner were decided the cases of Irvine against Wannock and Malcolm, June 1765, and Hope against Orr, 8th February 1780. See Appendix.
