Scottish Court of Session Decisions

Jeanie Holmes, Kilbarchan, pursuer, brought an action in the Sheriff Court at Paisley, against John M'Murrich, ploughman, Kilbarchan, defender, in which she craved damages for seduction and inlying expenses, and aliment of an illegitimate child. On 3rd February 1920 the Sheriff-Substitute ( Blair) found the pursuer entitled to £100 as damages for seduction, £3, 3s. as inlying expenses, and £12, 14s. annually for

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fourteen years as aliment for the child. The defender appealed to the Court of Session, and the pursuer lodged a note in which she stated, inter alia—“The defender, who is a domiciled Scotsman, had been resident in this country for several years before the action was raised, and he remained in Scotland until about the month of March last. The pursuer and respondent has just learned that he then left for Canada, where he has now taken up his permanent abode. He has no heritable property in Canada.” She craved the Court to ordain the defender and appellant to sist a mandatory. On the case appearing in the Single Bills of the Second Division counsel for the pursuer moved in terms of the prayer of the note. It was admitted at the bar that the pursuer had arrested on the dependence of the action £124 of the defender's funds.

Argued for the pursuer—The defender should be ordained to sist a mandatory— D'Ernesti v. D' Ernesti, 1882, 9 R. 655, per Lord Shand at p. 658, 19 S.L.R. 436; Young v. Carter, 1906, 14 S.L.T. 411 and 829; Mackay's Manual, p. 235; Shand's Practice, p. 159. In Florence v. Smith, 1913 S.C. 393, 50 S.L.R. 267, where the motion was refused, the defender had been assoilzied, and had left the country bona fide for the purposes of his business.

Argued for the defender—The motion should be refused. The sisting of a mandatory lay in the discretion of the Court, and in the case of a defender that discretion was liberally interpreted— Simla Bank v. Home, 1870, 8 Macph. 781, 7 S.L.R. 487; Aitkenhead v. Bunten & Company, 1892, 19 R. 803, 29 S.L.R. 659. In the present case the pursuer had arrested £124 of the defender's funds, which would more than cover the expenses.