Cairns v Anstruther
| Jurisdiction | Scotland |
| Judgment Date | 15 November 1838 |
| Date | 15 November 1838 |
| Docket Number | No. 8 |
| Year | 1838 |
| Court | Court of Session (Inner House - First Division) |
Ld. Cockburn. B.
Process—Expenses—Mandatary.—
IN 1833 an action was raised in the Court of Session by ‘John Rogers of Wells Street, in the county of Middlesex, merchant, and George Cairns, solicitor-at-law, Edinburgh, his mandatary.’ The action concluded for payment of a bill of exchange for £500, on which Major Robert Anstruther of Thirdpart, the defender, was an indorser, and of which the pursuer was the holder. Before raising the action, Rogers addressed a missive mandate to Cairns in these terms:—‘Sir,—I hereby authorize you as my mandatary to demand payment from Major Robert Anstruther, St Andrews, Fife, and the other parties concerned, of a bill of exchange for £500, dated,’ &c. ‘and on payment to discharge the said debt; and, if necessary, to raise action at my instance against the said parties before any court competent in Scotland, to compel payment.’
Defences were lodged, and a revised condescendence and answers were prepared, but before any interlocutor on the merits was pronounced, a minute was put into process by Cairns, on November 23, 1836, stating that ‘he did not intend to act longer under said mandate (of Rogers), and therefore craved leave to resign the office of mandatary, and to withdraw from the process.’ Cairns farther craved authority from the Lord Ordinary, to intimate ‘this resignation to the pursuer,’ and to his agents in London. On November 25, the Lord Ordinary allowed the minute to be seen; and, on December 23, his Lordship ‘appointed intimation to be made in terms of the foregoing minute, in order that the pursuer may have an opportunity of authorizing a new mandatary in this cause.’ By a subsequent interlocutor, Rogers was ordained to sist a mandatary; but it soon after appeared that he had gone to America, and had died there in 1836. No representative was sisted; and the defender alleged that he did not know of any representative against whom the action could be transferred. The defender then moved for expenses against Cairns, which motion was resisted as incompetent. Minutes of debate were ordered, and reported to the Court.
Pleaded by Cairns;—
The liability of the mandatary for a pursuer abroad, was merely that of being responsible, subsidiarie, for any expenses which might be awarded against the pursuer. Such pursuer continued the true party, and the only party, both as to the merits and as to expenses, although a mandatary required...
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