M'Murrich v. Holmes

Subject_1 Process Subject_2 Mandatory Subject_3 Defender, Appellant in Appeal, having Gone to the Colonies. Facts: In an action of seduction and filiation the pursuer had obtained decree in the sheriff court, and the defender had appealed to the Court of Session and thereafter had gone to Canada. The pursuer had arrested £124 belonging to the defender, and moved for his being ordained to sist a mandatory. The Court ordained the defender to sist a mandatory.

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 Page: 524 ↓

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.

Counsel for the Pursuer and Respondent— J. M. Hunter . Agents— Pairman , Miller , & Murray , S.S.C.