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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Bunten & Co. v. Aitkenhead [1892] ScotLR 29_659 (19 May 1892) URL: http://www.bailii.org/scot/cases/ScotCS/1892/29SLR0659.html Cite as: [1892] ScotLR 29_659, [1892] SLR 29_659 |
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Page: 659↓
When a litigant leaves the country it is a matter for the discretion of the Court whether or not he shall be ordained to sist a mandatary.
Motion to have the defender in an action under appeal to the Court of Session, who held decree of absolvitor in the Sheriff Court, and had gone abroad, ordained to sist a mandatary refused.
George Aitkenhead, grain and general storekeeper, Glasgow, brought an action in the Sheriff Court at Glasgow against William Bunten & Company, drysalters, Glasgow, for £292, 7s. 3d., for storage, and William Bunten & Company brought an action in the same Court against George Aitkenhead for £470, 9s. 6d., being the value of valonia stored with him, which, as they alleged, he had failed to redeliver. These actions were conjoined. The Sheriff-Substitute (Lees) on 23rd March 1891 gave decree in Aitken head's favour for £87, 16s. 3d. in the action in which he was pursuer, and assoilzied him from the conclusions of the other action. That interlocutor was affirmed by the Sheriff (Berry) on 23rd March 1892, and William Bunten & Company appealed to the First Division of the Court of Session.
Upon May 19 the appellants moved that Aitkenhead should be ordained to sist a mandatary, as he had gone to America some months ago, and was, as they had now discovered, an undischarged bankrupt. They argued that the rule was that a mandatary should be sisted. The cases relied on by the respondent were all decided on special grounds. They were cases in which the person whom it was sought to require to sist as mandatary was defender. Here Aitkenhead was pursuer in the first action which might be brought up for review under the appeal.
Argued for Aitkenhead—There was no inflexible rule. It was in the discretion of the Court to grant or refuse the motion, but here it was an oppressive motion. He was defender in the action under appeal, and a defender who had obtained decree of absolvitor from both Sheriffs. There was nothing in the conduct of the case requiring a mandatary to be sisted. All the recent cases were against requiring a defender to sist a mandatary— Simla Bank v. Home, May 21, 1870, 8 Macph. 781; D'Ernesti v. D'Ernesti, February 11, 1882, 9 R. 655; M'Donald's Trustees v. Stewart, February 6, 1891, 18 R. 491.
At advising—
Let us see how this application is made to us. It is not made on the ground that the conduct of the case requires that a mandatary be sisted, but rather because of the financial position of Mr Aitkenhead, who has gone abroad, and of the rights of him and his creditors to certain money. Now, I think Mr Aitken is right in the way he puts this case. His client has been found entitled to the sum of £87, which is in the hands of his adversary, and Mr Ure admits that that sum of £87 must be paid unless he can establish a claim, which he is suing this action to assert, but which has been negatived in the Court below. Accordingly the absent Mr Aitkenhead is the defender, and holds a decree in his favour. He is therefore in the doubly advantageous position of being not only defender in the action but defender holding a decree. In these circumstances I do not think we need to order Mr Aitkenhead to sist a mandatary, and I am therefore for refusing the motion.
The motion was refused.
Counsel for William Bunten & Company— Ure. Agents— J. & J. Ross, W.S.
Counsel for Aitkenhead— Aitken. Agents— Webster, Will, & Ritchie, S.S.C.
