What Caution exigible from Foreigners in law suits. - How far their Attornies liable for them.
Amelia Leigh v. James Rose
Date: 19 December 1792 Case No. No 7.
An attorney defending in an action for a person abroad, is not liable personally for the expenses awarded against his constituent.
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Amelia Leigh having prevailed in an action of declarator of marriage, before the Commissary Court, against Robert Sinclair, was found entitled to expenses. As Mr Sinclair was out of the kingdom, she insisted that Mr Rose, who had defended in the action, in virtue of a power of attorney from him, should be found personally liable for them; and so the Commissaries found.
Mr Rose having brought an advocation of this judgment,
Pleaded, Although the factor for a foreigner, pursuing in this country, has been found personally liable in expenses, it is not equitable that this rule should be applied to the attorney of a foreign defender. A foreigner not being amenable to the courts of this country, it is reasonable, if he pursue in a groundless action, that he should find a person on the spot who shall be answerable for the costs. But before an action is commenced against a defender, either his person or his effects ought to be found in this country, in order to constitute an effectual jurisdiction over him. And in consequence of its being established in this manner, if the pursuer is found entitled to costs, it necessarily follows, that either the defender's person or his property must be liable to diligence at his instance, in order to render his claim for them effectual. There is not therefore the same occasion for subjecting his attorney personally; and without an absolute necessity, the law will never deviate so far from ordinary principles, as to make a factor liable for his constituent's debt. Besides, it is voluntary in a pursuer, but necessary for a defender, to come into court. It would therefore be inconsistent to force his attendance under a penal certification, and at the same time insist on his finding caution for the expenses incurred by the pursuer, which might in many cases preclude his appearance.
Answered, The steps which an attorney for a foreigner, whether pursuer or defender, takes in a process, are considered as the attorney's own proper acts and deeds, and therefore he must be personally liable for their consequences.
The Lord Ordinary remitted to the Commissaries, ‘with this instruction, to assoilzie James Rose from expenses.’
On advising a reclaiming petition, with answers, the Court adhered to the Lord Ordinary's interlocutor.
Lord Ordinary, Justice-Clerk.Act. D. Smyth.Alt. M. Ross.Clerk, Home.
Fol. Dic. v. 3. p. 232. Fac. Col. No 8. p. 18.
*** The case of Ritchie against Scot, July 1784, had been decided in the same manner. See Appeneix.
