Scottish Court of Session Decisions

Lord President—In this case the defenders move that the pursuer should be bound to sist a mandatory in respect that he is not at present within the jurisdiction of the Court, and to that demand two answers are made. In the first place, it is said that the pursuers are owners of heritable property in Scotland as trustees, but that is not a good answer under the circumstances, because the object of the action is to reduce a security held by the defenders over that property. But there is a second answer, which is of much more importance. It is contended that as by sec. 3 of the Judgments Extension Act decree for expenses given by this Court may be enforced against parties resident in England, the defenders are in no worse position than they would have been if the pursuer had been resident in Scotland. It seems to me that there is a great deal of force in that argument in so far as sisting a mandatory is intended to secure the payment of expenses in the event of their being found due. That, however, is not the only purpose of such a sist; there is the further object that there may be always some one here who is responsible for the proper conduct of the cause. That, however, is a matter which is rather the interest of the Court, and no doubt the great interest of the party is that he may have some one against whom he may enforce his decree for expenses, and so in determining this case the circumstance that the decree for expenses will be enforceable must have great weight. The question is one entirely within the discretion of the Court, and we considered the matter so important that we consulted our brethren, and the result of that consultation is, that we shall always consider it very important that the pursuer or defender who is asked to sist a mandatory is not resident in a foreign country, but is in some part of the United Kingdom, and unless there are other circumstances which have to be considered, the Court would refuse the motion. In consideration that in the present case the security for the expenses is quite good, we have no doubt that the motion must be refused.

The other Judges concurred.