WILLIAM BROWN v AUGUSTUS F LINDLEY (Court of Session)

Brown raised an action against Lindley for a debt of L.27, upon the dependence of which arrestments were used against the furniture of the defender in the hands of an agent in Leith. An agreement was entered into between the agents for the parties, by which L.30 was consigned in the Royal Bank by the agents for the defender, and the arrestment was discharged. The action was then called, and a record was made up and closed; and the Lord Ordinary, after a debate, remitted the cause to the Jury Roll.

The defender having gone to Jersey, the pursuer applied to have a mandatary sisted, who would be responsible for the expenses. This motion was resisted on the part of the defender, who pleaded —

I. That previous to the action being raised, the pursuer was aware that the defender had left the country, and had arrested his furniture when in the course of being shipped at Leith for Jersey; but no demand had been made to sist a mandatary, although the process had gone on for about two years, the record was closed, the case debated, and sent to the Jury Roll. The pursuer was therefore now foreclosed from making the demand.

II. Although the furniture which had been arrested was sufficient not only to meet the sum sued for and the expenses, the pursuer had, by a special agreement, accepted of consignation of L.30, and discharged the arrestment. As the pursuer, therefore, in the knowledge of the defender being out of the country, had accepted of consignation to a limited amount, instead of insisting for caution for the debt and expenses, he was not entitled now to insist for a mandatary for expenses.

The pursuer did not know when the summons was raised that the defender was out of the country. It is now quite established, that a party who has withdrawn to a foreign country, having no estate here, is not entitled to appear in a court of law without sisting a mandatary. This was always the law in regard to pursuers, and the same law is now established to be applicable to defenders ; M'Call, 17 Jan. 1822; Pease and Smith, 4 June 1822 ; Ferguson, 22 Nov. 1825; Grant, 30 Nov. 1825; Countess of Strathmore, 31 May 1825; Reoch, 14 May 1831.