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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Train v. Little [1911] ScotLR 619 (16 March 1911)
URL: http://www.bailii.org/scot/cases/ScotCS/1911/48SLR0619.html
Cite as: [1911] ScotLR 619, [1911] SLR 619
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SCOTTISH_SLR_Court_of_Session
Page: 619↓
Court of Session Inner House First Division.
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v.
v.
Facts:
Where a pursuer fails to obtemper the order of the Court, and to sist a sufficient mandatory within the time ordered, the defender is entitled to decree of absolvitor.
These two actions, raising the same point, were heard together.
On 5th May 1910, Richard Train, residing at 430 West Twenty,-Fifth Street, New York, pursuer, “and Neil Sinclair, clothier and outfitter, residing at 24 Battlefield Road, Langside, Glasgow, his mandatary, conform to mandate in his favour dated 11th April 1910,” raised an action against John Scott, Barrhead, and another, defenders.
On 21st June 1910 the record was closed. Thereafter a minute was lodged for the defenders objecting to the sufficiency of the mandatary on the ground, inter alia, that he was insolvent, and had recently offered a composition to his creditors, and on 4th November 1910 the Lord Ordinary (
Skerrington ) pronounced this interlocutor—“… On the motion of counsel for pursuer, and of consent of counsel for defenders, appoints the pursuer (Richard Train) to sist a mandatary in place of the mandatary mentioned in the summons within four weeks.”Another mandatary was tendered to whom objection was taken on the ground that there was a decree of expenses in an action outstanding against him.
On 13th December 1910, the Lord Ordinary pronounced this interlocutor—“… On the motion of counsel for defenders, and in respect the pursuer (Richard Train) has failed to sist a sufficient mandatary in terms of interlocutor of 4th ulto., assoilzies the defenders from the conclusions of the summons, and decerns…
On 9th September 1910, the same pursuer, putting forward the same mandatary, raised an action against Andrew Little, writer, Glasgow, defender. On 1st November 1910 the Lord Ordinary ( Cullen) remitted the process to Lord Skerrington to depend before him ob contingentiam of the above action.
On 15th November 1910 the Lord Ordinary (
Skerrington ) “continued the adjustment of record until Tuesday, 6th December next, and ordained the pursuer to sist a mandatary before that date.” On 6thPage: 620↓
December the Lord Ordinary, “on cause shown, continued the adjustment of record until Tuesday, 13th inst.” On 13th December the Lord Ordinary pronounced this interlocutor—“… On the motion of counsel for defender, and in respect the pursuer has failed to sist a sufficient mandatary in terms of interlocutor of 15th ulto., assoilzies the defender from the conclusions of the summons, and decerns.”
In both actions the pursuer reclaimed, and argued—(1) He should be given another opportunity of sisting a mandatary. (2) In any case the interlocutor should be only dismissal and not absolvitor.
Argued for the defenders—(1) No further opportunity should be given to the pursuer of sisting a mandatary. (2) The proper decree was absolvitor—Mackay's Manual of Practice, pp. 239 and 310; Gordon v. Gordon, December 17, 1822, 2 S. 86 (93); Gray v. Ireland, July 18, 1884, 11 R. 1104, 21 S.L.R. 766.
At advising—
I am satisfied that ample opportunity was given to the pursuer, on more than one occasion, to obtemper the order of the Court, and I do not think this is a case in which there is any reason to give more time. My only doubt after the discussion was whether the Lord Ordinary's interlocutor should have been one of dismissal instead of absolvitor. On looking into the authorities and inquiring into the practice of the Court I am satisfied that decree of absolvitor is properly granted. The principle that has governed the practice requires that persons who sue before the Court must do so under the recognised rules of the Court, and if they are not prepared to comply with these rules the party whom they sue is entitled to have done with the action altogether.
I am therefore of Opinion that the interlocutor reclaimed against should be adhered to.
The Court adhered to the Lord Ordinary's interlocutor, dated 13th December.
Counsel for the Pursuer and Reclaimer — A. M. Stuart. Agent— C. Strang Watson, Solicitor.
Counsel for the Defenders and Respondents— D. P. Fleming. Agent — W. B. Rankin, W.S.