Scottish Court of Session Decisions

Now in my opinion there is a great distinction to be drawn between a party who goes abroad voluntarily or on his private business, and a party like this gentleman, who is ordered abroad on Her Majesty's service.

This debt was contracted in India by two individuals, and although the defender is bound jointly and severally with them, he appears to have been merely a cautioner.

The action is brought against him alone, while no reason is given why the others are not sued, and neither does it appear why proceedings were not taken against all the parties in India.

In the whole circumstances, I do not think that we have been shown any good reason why we should ordain him to sist a mandatory, at least at this stage, while I must not be held to decide that at no future stage will this motion be granted.

Lord Ardmillan concurred.

Lord Kinloch—I am of opinion that the defender is bound to sist a mandatory.

In considering this question, we must assume that the action has been properly brought, and the defender properly made a party to it. Thereafter, the defender leaves the country for an indefinite period; it does not appear when he may return, or if ever at all. Now, what is the law of this Court in such a case? I think it is, that the party so going abroad, whether he be defender or pursuer, is bound to sist a mandatory. The principle upon which this rule is based is twofold. First, that there may be some one within the country answerable to the other party for expenses; and secondly, that there may be some one answerable to the Court for the proper management of the case. The second of these objects is held to be of importance equally with the other.

There are cases in which a distinction has been drawn, and most properly, between a pursuer and defender. I refer to the cases in which one of the parties is bankrupt, and the question is whether ho is entitled to proceed with the litigation without finding caution for expenses. I understand and admit the distinction drawn between the case of a bankrupt being the pursuer in an action, and therefore fairly liable to be stopped proceeding with it unless he find caution for expenses, and the case of a bankrupt being the defender in the action, whom it is most unreasonable that the pursuer, who called him into the field, should, after doing so, be allowed to hinder stating his defence till he find caution. But these are cases having no reference to parties going abroad, and as to these I think the rule is the same, in the case both of a pursuer and of a defender. I consider the rule to be, that the defender, equally with the pursuer, is bound to sist a mandatory. I can find no authority for holding that, merely because the party has gone abroad on duty, as, for instance, is a soldier who has been ordered abroad on service for an indefinite period, he is exempted from the operation of the rule. Nor do I think there is any authority for saying that the Court can, in such a question, look to the circumstances of each case, or give weight to an argument resting on alleged hardship. I think the Court is possessed of no discretion to discriminate on this ground between one individual and another.

I am unable on the whole to arrive at any conclusion other than that the defender should be appointed to sist a mandatory, ample time of course being allowed to him for doing so.

Lord President—If I thought that our judgment was adverse to any settled rule or practice, I would not concur with your Lordships, but I am of opinion that there is no such settled rule in the case of a defender going abroad, and I have a distinct impression that the practice is variable. We must keep in view the substance as well as the form of the motion. The form is that the defender shall have some one holding a mandate to represent him in the action, while the substance is that he shall find caution. That is plain from the fact that the pursuer will accept anyone as mandatory without a mandate, if he be good for the expenses. That being so, there is no difference between this case and the case of a bankrupt. Both are questions for the discretion of the Court, and we must look to the special circumstances here. The pursuer had the option of suing the defender in India, where he would not have been obliged to sist a mandatory, and it is hard that, by being brought here, he should be subjected to that disadvantage. It was an Indian debt, and an Indian creditor, and all the parties were resident in India when the debt became payable. But the cautioner in the bond gets leave of absence and returns to Scotland, and during his temporary residence there the Bank brings this action instead of having sued it before he left India, or waiting till he should return. I think this is a case where, in the fair exercise of their discretion, the Court are entitled to refuse this motion in hoc statu.