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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Florence v. Smith [1912] ScotLR 267 (11 December 1912)
URL: http://www.bailii.org/scot/cases/ScotCS/1912/50SLR0267.html
Cite as: [1912] SLR 267, [1912] ScotLR 267
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SCOTTISH_SLR_Court_of_Session
Page: 267↓
Court of Session Inner House Second Division.
[Sheriff Court at Dundee.
v.
Facts:
Where a defender, who had been assoilzied in an action in the Sheriff Court, had since then gone to South Africa on business, but was still within the jurisdiction of a British Court, the Court refused in hoc statu to ordain him to sist a mandatory to defend the action in an appeal.
Catherine Eleanor Florence, pursuer, brought an action of affiliation and aliment in the Sheriff Court at Dundee against George Smith, defender.
On 26th July 1912 the Sheriff-Substitute ( Neish) assoilzied the defender.
The pursuer appealed to the Court of Session, and lodged a note in which she averred that “the defender and respondent has been out of the country for some weeks,” and moved in the Single Bills that he should be ordained to find caution or sist a mandatory.
Argued for the respondent—The rule was that when a defender was abroad he should sist a mandatory, but it was in the discretion of the Court to enforce it or not. The rule had not been enforced in some recent cases— D'Ernesti v. D'Ernesti, February 11, 1882, 9 R. 655, 19 S.L.R. 436; Aitkenhead v. Bunten & Company, May 19, 1892, 19 R. 803, 29 S.L.R. 659. The defender had been successful in the Sheriff Court, and had gone abroad on bona fide business to South Africa, where he was still within the jurisdiction of a British Court. This was therefore a case where the rule should not be enforced.
Argued for the appellant—The respondent being now resident out of Scotland ought to sist a mandatory—Madras's Manual, p. 235— Bank of Scotland v. Rorie, June 16, 1908, 16 S.L.T. 130; Young v. Carter, November 9, 1903, 14 S.L.T. (O.H.) 411, affd. March 9, 1907, 14 S.L.T. 829.
The Court, in respect that the defender (1) had been assoilzied in the Court below, (2) had left the country bona fide for the purposes of his business, and (3) was within the jurisdiction of a Court of the British Dominions, refused the motion hoc statu.
Counsel for the Appellant (Pursuer)— Paton. Agents— Clark &Macdonald, S.S.C.
Counsel for the Respondent (Defender)— Lippe. Agents— Douglas & Miller,W.S.