Scottish Court of Session Decisions

The defender in this action, raised in the Sheriff Court at Wick, left the country some time after the record had been closed and proof allowed, but before

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the proof had been concluded. He was, however, represented in Court by his procurator, and the case proceeded. The Sheriff-Substitute (Russel) gave judgment in the case, decerning against him in terms of the summons.

Against this judgment of the Sheriff-Substitute the defender's procurator appealed on 11th January 1871. Before the reclaiming petition came before the Sheriff (Thoms), a minute in the following terms was put in for the pursuers:—“Miller, for the pursuers, stated that the defender had left Scotland upwards of three months ago for New Zealand or Australia, with the intention of remaining abroad, and therefore craved that the defender be appointed to sist a mandatory who would be liable in expenses.” The Sheriff accordingly reserved consideration of the appeal, and allowed the minute to be received, and appointed it to be answered by the defender within eight days. The defender's procurator thereafter lodged the following answer to the minute for the pursuers:—“Gray, for the said Alexander Couper, stated that he denied the statements made in the minute under answer. The said Alexander Couper recently went south for a temporary purpose, but he never informed his agent that he intended going to New Zealand or Australia, or beyond the limits of Scotland, but simply to Greenock or Glasgow on business, and he expected to return early in March. Moreover, the said Alexander Couper has a house and farm, on lease current for several years yet. where his wife and ten of a family reside, at Latheronwheel, where the pursuers' agent a few weeks ago, long after Couper went south as stated, sued him in an action at the instance of James Henderson & Company, which was at once settled and paid. He is not obliged to sist a mandatory, his absence being purely temporary and of a very limited nature—his only home being at Latheronwheel, in Caithness,—and the pursuers' object in moving for a mandatory during the defender's absence, “who would be liable in expenses,” being that, as he would not likely get such, they might improperly obtain decree in their ill-founded action. On the whole, it is respectfully suggested, in the circumstances stated, that no mandatory should be sisted on any understanding whatever.”

A proof of the averments in this minute and answers was led, and the Sheriff, on 2d March 1871, on consideration of the said proof, appointed the defender “to sist a mandatory on or before 20th May next.” On May 24 the defender's procurator intimated by minute that he had ascertained that the defender was then in New Zealand, though it was believed that his intention was to return, and that he might be expected back in the course of the following August. Of this there was no evidence. “As it might, however, be urged that he was in the meantime bound to sist a mandatory,” his agent craved that Mr John Cormack, gardener, Reiss, near Wick, a proper party and a person in the defender's own position in life, might be sisted as his mandatory accordingly. A letter was produced from Mr Cormack, intimating his willingness to undertake the duties and liabilities of the office. An amended minute, much to the same effect, was lodged for the defender on June 2d, craving that the case might be continued till the defender's return, which was confidently expected in August, or that Mr Cormack might be sisted as mandatory. The pursuers opposed this, and moved the Sheriff to pronounce decree, in respect of the defender's failure to sist a mandatory in terms of the interlocutor of 2d March. The Sheriff accordingly, on 5th June 1871, pronounced the following interlocutor:—

“ Edinburgh, 5th June 1871.—The Sheriff having resumed consideration of this case, with the minute for the pursuers, No. 22 of process, and the minute tendered on behalf of the defender on 3d instant, and also letter produced on behalf of the defender from John Cormack, dated 2d instant, allows said last mentioned minute and said letter to be received into process; and in respect that no consent by the pursuers to any person sisting himself in the cause, and acting therein as if he were mandatory for the defender, has been instructed; that the pursuer moves for decree because the defender has not sisted a mandatory in terms of the interlocutor of 2d March last; that the defender did not on or before 20th May last sist a mandatory; that the defender has not since tendered a mandate by him in favour of any person; that no power or authority by the defender to any person to sist himself as mandatory, or to appoint any person as his mandatory, or to obtain any person sisted as mandatory for the defender, is instructed; that in none of the minutes for the defender is a prorogation of time to obtain and lodge a mandate by the defender craved; that no offer of caution has been made on behalf of the defender, and of the other circumstances of this case, dismisses the defender's appeal, and decerns in terms of the conclusions of the summons, with expenses.

“Note.—The Sheriff is aware of the dicta of Lord Justice-Clerk Hope (which are erroneously reported in the rubric of the case Elder v. Thomas Young Co., June 27, 1854, 16 D. 1003, as a decision upon the point) that a person may be sisted as mandatory for a litigant abroad without a mandate being produced signed by the litigant. As opposed to these dicta, there is an equally strong statement that the law and practice is in an opposite direction by Lord Cowan. The only motion in that case then before the Court, and dealt with, was for delay to enable the reclaimer to be communicated with, and to get a mandate from him. The Sheriff is of opinion that the law and practice are as stated by Lord Cowan.” The Sheriff then proceeded to discuss the following authorities in support of his judgment, viz.:— O'Haggen v. Alexander, July 31, 1761, M. 4644; Hope v. Mutter, June 10, 1797, M. 4646; Neilson v. Wilson, Feb. 13, 1822, 1 S. 314 (N.E. 290); and Ross v. Shaw, March 8, 1849, 11 D. 984.

Against this and the previous interlocutors the defender's procurator appealed to the Court of Session.

M'Kechnie for the appellant.

Mackintosh, for the respondents, referred to the cases of Dempster v. Potts, Feb. 18, 1836, 14 S. 521; and Bonny v. Lord Gillies and Others, Nov. 13, 1829, 8 S. 13.

At advising—