Scottish Court of Session Decisions

The Lord Ordinary (Morison) dismissed the action, and the pursuer reclaimed.

While the case was pending in the Inner House the defender presented a note in which she prayed the Court for an interim award of expenses, and for an order on the pursuer to sist a mandatary.

In the discussion in the Single Bills the following cases were referred to on behalf of the defender in support of the contention that the pursuer should be ordered to sist a mandatary— Tingman v. Tingman, 1854, 17 D. 122; Low v. Low, 1905, 12 S.L.T. 817; and Taylor v. Taylor, 1919, 1 S.L.T. 169.

Counsel for the pursuer referred to D'Ernesti v. D'Ernesti, 1882, 9 R. 655, 19 S.L.R. 436, and Campbell v. Campbell, 1855, 17 D. 514.

The opinion of the Court ( Lord President, Lord Skerrington, Lord Cullen, and Lord Sands) was delivered by the Lord President (Clyde)—The wife (defender) in this action of divorce on the ground of desertion moves that her husband (pursuer) should be ordained to sist a mandatary. It appears that the husband is a domiciled Scotsman who was before the action was raised, and still is, serving as a police constable in Canada. The appointment of a mandatary is in all cases, but particularly in consistorial ones, a discretionary matter— D'Ernesti v. D'Ernesti, 9 R. 655, In the case of a defender who left this country during the dependence of a consistorial action, the Court has ordered appointment of a mandatary— Tingman v. Tingman, 17 D. 122. But here the husband was making his livelihood in Canada at the time of his marriage, and has been doing so ever since. His absence from this country cannot be supposed to have any connection with the action. Moreover, he has supplied his wife during his absence with sums of money which appear substantial in view of his own position in life. As was pointed out in Campbell v. Campbell (1855, 17 D. 514) it is desirable, where it is possible, that consistorial actions should be defended rather than pass through in absence. But in the present case there is a serious risk that an order for appointment of a mandatary might have the effect of making it impossible for the pursuer to carry his reclaiming note to judgment. This would be an unjustifiable penalty for the bona fide absence of a pursuer whose domicile makes appeal to the Consistorial Courts of this country imperative. Each case must depend on its own circumstances, but I think in the present case we should refuse to pronounce the order asked by the defender.