Scottish Court of Session Decisions

In this action the pursuers are the Antermony Coal Company and its individual partners (Austin & Co., coalmasters, Hamilton and Glasgow, and Walter Wingate), and the defenders are Wingate & Co. and the individual partners of that firm. Appearance having been made on behalf of one only of the defenders, Mr Cadell Bruce, he to-day moved that the pursuer Wingate, who is at present abroad, and who is also one of the partners of Wingate & Co., the defenders, should be appointed to sist a mandatory, in respect that the action was at the instance of a company trading under a descriptive name, who were not entitled to sue by that name except along with at least three partners.

It was argued for the pursuer that in the present case all the purposes for which a mandatory was necessary were served. The pursuers were a Scotch company. One of their partners, Austin & Co., resided and traded within the jurisdiction of the Court, and the debt sued for was a company debt. In Rob's Trustees v. Hutton, 28th May 1863 (unreported), which was an action at the instance of two and a quorum of the trustees and executors of a party deceased, against the only other surviving and accepting trustee and executor nominated by the testator, Lord Kinloch (Ordinary) refused a motion by the defender that one of the pursuers, who was stated to have left Scotland, should be appointed to sist a mandatory, and on a reclaiming note the First Division adhered. The Lord Ordinary refused the motion.