H. Fischer and Co. v. Aktieselskabet Tremastet Skonnert "Molly."

Subject_ Process — Decree in Absence — Mandate to Lodge Defences. Facts: Defences were lodged to an action in the name of a foreign defender upon the instructions of a party whose authority to act for the defender was denied by the pursuer. The Lord Ordinary, without pronouncing an order for the production of a mandate, granted decree in absence.

Held that the action as originally raised was incompetent, and that the arrestments upon its dependence were therefore without warrant, and could not be validated by the subsequent amendment of the summons so as to prejudice the rights of competing creditors.

In July 1895, H. Fischer & Company raised an action against Aktieselskabet Tremastet Skonnert “Molly,” the registered owners of the “Molly” of Svendborg, Denmark, arrested at Grangemouth, to have the ship sold and the proceeds divided.

The ship was sold by public roup at Grangemouth under order of the Court on 3rd September 1895 for £675. Of this sum over £400 was found due to various persons having preferable claims. As to the balance there was a competition between J. R. Andersen, shipbuilder, Svendborg, Denmark, and H. Fischer & Company, depending upon the priority and validity of the arrestments on which they respectively founded.

On the same date the Lord Ordinary decerned in absence against the defenders Aktieselskabet Tremastet Skonnert “Molly” in terms of the first petitory conclusion of the summons as restricted by the minute annexed thereto and the minute of 25th June.