Scottish Court of Session Decisions

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URL: http://www.bailii.org/scot/cases/ScotCS/1891/28SLR0363.html
Cite as: [1891] SLR 28_363, [1891] ScotLR 28_363

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SCOTTISH_SLR_Court_of_Session

Page: 363↓

Court of Session Inner House First Division.

[Sheriff of Banff.

Friday, February 6. 1891.

28 SLR 363

Walkingshaw and Others (Macdonald's Trustees)

v.

Stewart.

Subject_1Process
Subject_2Application for Order to Sist Mandatory where Defender had Left the Country.

Facts:

Circumstances in which the Court refused in hoc statu to ordain a defender who had left the country to sist a mandatory.

Headnote:

This was an action by Alexander Walking-shaw and others, the trustees of James Macdonald for behoof of his creditors, to have Elsie Stewart interdicted from selling two stots poinded by her upon the farm of Newley, the stocking of which, according to the averment of the pursuers, belonged to the trust-estate.

The Sheriff having granted the interdict sought for, Elsie Stewart appealed, but pending the appeal she left this country for America.

Thereafter counsel for pursuers applied to the Court to ordain the defender to sist a mandatory, stating that, according to his information, the defender had gone out to a sister in America, and intended to settle there, and founding on the case of Taylor v. Kerr, December 1, 1829, 8 S. 151.

Counsel for the defender stated that the defender had left this country for the merely temporary purpose of nursing her sister in America, who was unwell, but her agent was unable to say whether she intended to return to this country or not. He submitted that Taylor was an old and peculiar case, and was not a sufficient authority for the present application, which should therefore be refused.

At advising—

Judgment:

Lord President—I think we should refuse this motion in hoc statu. Whether we would refuse it absolutely on another occasion would depend a good deal on whether the defender does return to this country, or what we should hear of her intentions.

Lord Adam—I am of the same opinion. The defender's representative should be aware of her intention. He says he knows nothing about it, and cannot say that she intends to come back to this country. If the motion is repeated, and he cannot give the Court a more explicit answer, I do not say what may be the result.

Lord M'Laren—If the defender has only gone to nurse her sister, she will probably be home before the case comes on for hearing, and I think therefore it would be premature to require her to sist a mandatory. I agree that we should refuse the motion in hoc statu, but before the case is put out for hearing I should expect the representative of the defender to give us some further information.

Page: 364↓

Lord Kinnear—If the motion is repeated, it will be the duty of the defender's representative to make a more specific statement than he is at present able to do.

The Court accordingly refused the motion in hoc statu.

Counsel:

Counsel for the Pursuers— W. C. Smith. Agent— Alex. Morison, S.S.C.

Counsel for the Defenders— Rhind. Agent— William Officer, S.S.C.
1891

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