Scottish Court of Session Decisions

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Cite as: [1883] SLR 20_457, [1883] ScotLR 20_457

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SCOTTISH_SLR_Court_of_Session

Page: 457↓

Court of Session Inner House First Division.

Thursday, March 1. 1883.

20 SLR 457

Erskine and Others

v.

Watson and Park.

Subject_1Process
Subject_2Mandatory
Subject_3Expenses.
Facts:

A mandatory who withdrew from a cause prior to decree being pronounced, held liable for the expenses ultimately decerned for in favour of the opposite party, down to the date of his withdrawal.

Headnote:

This was an action of reduction of the trust-deed and settlement of Thomas Walker, fishcurer, Fraserburgh, which was raised at the instance of Mrs Helen Erskine and Archibald Walker against the trustees and executors appointed under the said settlement, and John King, farmer, Strichen, Aberdeenshire. Shortly after the action was raised the pursuers had to leave the country temporarily, and a mandatory was sisted on 3d February 1882. By minute, dated 1st November 1882, the mandatory withdrew from the cause on account of the return to this country of the principal pursuers. The case was thereafter tried before a jury, who found for the defenders. Thereafter, on the motion of the defenders, the verdict was applied, and they were found entitled to expenses. Thereafter the defenders moved for approval of the Auditor's report, and for decree against the pursuers and also against the mandatory down to the date of this minute of withdrawal. The motion was objected to on behalf of the mandatory, and it was maintained for him that he was not liable for any part of the expenses incurred to the defenders, because he had withdrawn by minute from the case six weeks prior to decree being obtained.

Authorities— Renfrew v. Brown, June 7, 1861, 23 D. 1003; Nelson v. Wilson, Feb. 13, 1822, 1 Sh. 290.

Argued for defenders—The mandatory was conjunctly liable along with the principal pursuers for all expenses incurred up to the date of the minute by which he withdrew from the process. A mandatory until he withdraws is just in the position of a party to the cause quoad the expenses.

Authorities— Martin v. Underwood, June 8, 1827, 5 Sh. 730; Anderson v. Bank of Scotland, Jan. 22, 1836, 14 Sh. 316; Barclay v. Barclay, July 16, 1850, 12 D. 1253; Cairns v. Anstruther, Nov. 15, 1838, 1 D. 24; Chapman v. Balfour, Jan. 8, 1875, 2 R. 290.

At advising—

Judgment:

Lord President—The mandatory must in this case be held liable for all expenses which have been incurred down to the date of the minute intimating his withdrawal from the cause, but not for any expenses incurred subsequent to that date. I think that this principle has been assumed in several of the cases to which we were referred, particularly the case of Anderson; and indeed it does not require direct authority, but arises from the nature of the position of a mandatory in a cause. It can make no difference in that position that the principal parties to the cause have returned to this country, for had they not so returned, and had

Page: 458↓

the first mandatory desired to retire, another mandatory would necessarily have been sisted in his place, and it would not vary the result that the second mandatory becomes liable for the whole expenses from the first. What the mandatory really undertook was liability for the expenses of process during the time that he acted in that capacity. He can prevent himself incurring liability for future expense by withdrawing from the process, but he cannot by so withdrawing escape liability for the expenses incurred while he acted as mandatory.

Lord Deas—I never heard it doubted that a mandatory was liable for the expenses incurred up to the date of his withdrawing from the action.

Lord Mure—I agree with your Lordships in holding that the mandatory must be held as liable conjunctly and severally with his principals for all expenses incurred during the time that he remains a mandatory, and that he cannot be freed from this liability merely by lodging a minute and withdrawing from the cause.

Lord Shand—If the mandatory had only undertaken to represent his principals at such times as their presence might be necessary, or at the close of the case, then there might have been a good deal of force in Mr Dickson's argument; but a mandatory really becomes a party to the cause, and although he can retire if he so desires, he still remains liable for the expenses incurred during his connection with the case.

Counsel:

Counsel for Mandatory— Dickson. Agent— R. C. Gray, S.S.C.

Counsel for Defenders— Keir. Agent— JohnGill, S.S.C.
1883