Scottish Court of Session Decisions

The Lord Ordinary ( Kincairney) refused the motion.

Opinion.—“On considering the motion for the defender for decree against the pursuer's mandatory, I have come to the conclusion, contrary to my original impression, that it should be refused. I have come to think that I ought not to extend the liabilities of a mandatory beyond previous usage or pronounce a decree against him which is not warranted by decisions or judicial dicta, or the authority of institutional writers, or practice, and no such authority has been quoted to me in favour of this motion, and I have not been able, after some investigation, to find any. It is quite possible that the question has never been raised before. When I pronounced the interlocutor of 28th November my attention was not called to the fact, or at least I did not advert to it, that the pursuer sued along with a mandatory, and hence my judgment was pronounced against one pursuer only—that is, of course, the principal pursuer; but the form of that interlocutor does not preclude a second interlocutor including the mandatory also in the decree for interim aliment.

The position of a judicial mandatory and the extent of his liability have more than once been defined and explained from the Bench. Lord Ivory in a note to Erskine, iii. 3, 32, says that ‘the liability of a judicial mandatory does not go beyond the expenses of process.’ But I think that all that was intended was to state that he was not liable to implement the merits of the action, for there is no doubt that the liability of a mandatory does go beyond liability for the expenses of process. Thus in Renfrew & Brown v. Magistrates of Glasgow, June 7, 1861, 23 D. 1003, the Lord Justice-Clerk (Inglis) says—‘As regards the merits he is a mere representative, but he is personally answerable for all the other conditions of the contract of litiscontestation. He is liable to implement any order the Court may pronounce in regulating the conduct of the process; he is personally liable for fines and for expenses which may be found due in the course of the process, and he is personally liable for the whole expenses of the process.’ In Overbury v. Peak, July 9, 1863, 1 Macph. 1058, Lord Deas expresses his view of the liability of a mandatory as follows—‘One great object of having a mandatory is that there shall be a party responsible to the Court for the proper conduct of the litigation, which may be material, as regards personal liability for the consequence of any irregularity, as, for example, contempt of Court. The mandatory, in short, has to represent within the jurisdiction the party who is beyond it.’ In Gunn & Company v. Cooper, November 22, 1871, 10 Macph. 116, Lord Kinloch said that the object of sisting a mandatory ‘is not only to make the mandatory liable for expenses, but also to secure a party responsible for the proper conduct of the cause, and for the availability of every step taken in the Court;’ a definition adopted by the Lord President (Inglis) in Thoms v. Bain, March 20, 1888, 15 R. 613. These judicial dicta do not suggest the liability of a mandatory for an interim award of aliment, or for any similar award, yet neither do they exclude it. As to the extent of the responsibilities of a mandatory beyond the expenses of process, these dicta have not received much, if they have received any, illustrations in judgments of the Court. The dicta of course are of too great authority to be questioned. But I do not know that they are supported by any decision. They afford, however, some ground for the defender's motion. It is contended that the award of aliment is nothing but an order for the due conduct of the cause, and that it is only to be justified and accounted for on that ground seeing it is not concluded for, and that the liability of a husband—pursuer in an action of divorce—to aliment his wife during the process is a condition of this special contract of litiscontestation. It is maintained that it is in the same position as an interim award of expenses. It has been decided, however, that an interim award of aliment and an interim award of expenses do not stand in precisely the same position. In Dixon v. Bayne, February 17, 1841, 3 D. 559, it was decided that an action of divorce against a wife might proceed though a sum of aliment awarded to her in the course of it against her husband had not been paid, but that the action could not proceed until the husband had paid the wife's expenses of process awarded against him, which comes near to saying that payment of the wife's expenses is a condition of the contract of such a litiscontestation, but that an award of interim aliment is not. The view of the defender has appeared to me to be plausible, but as it is not supported by a vestige of direct authority, I have thought that the liability of a mandatory as it has hitherto been understood cannot safely be extended.”