WILLIAM UNDERWOOD v WILLIAM MARTIN (Court of Session)

Alexander Linton, having become insolvent, executed a disposition omnium bonorum in favour of certain trustees for behoof of themselves and his other creditors. In virtue of this conveyance, Joseph and Martha Marston of the city of Carlisle, and Messrs John Martin and John Thompson, writers in Locker-by, their mandataries, brought a process of adjudication against Linton, in which was included a tack assigned by him in favour of Underwood.

Upon this, but after Martin had ceased to be a partner of Martin and Thompson, and had withdrawn from the process, Underwood raised an action of declarator to have it found that the tack in question belonged to him, and that the trustees and the other creditors should be prohibited from troubling him in the peaceable possession of the subjects.

The Lord Ordinary, ‘In respect that the conveyance to part of the property in question in favour of William Underwood, is dated prior to the deed in favour of the pursuers, found that the subjects referred to in the conveyance in favour of the said William Underwood must be deleted from the summons of adjudication ; and decerned accordingly: Found the pursuers liable to the said William Underwood in expences,’ &c. And thereafter his Lordship ‘Found the pursuers, and William Martin and John Thompson, as their mandataries, liable to William Underwood to the taxed amount of the expences.’

Against this interlocutor, so far as it found him liable in expences, Martin reclaimed , and pleaded —That, as he had ceased to be a partner of Mr Thompson, and had withdrawn his name from the process, he could not justly be subjected in payment of any part of the expences incurred subsequent to that date; particularly in a question with Underwood, who had not become a party to the proceedings till after he had withdrawn, and so could not have looked to him, as mandatary, for any expences to which he might be found entitled.

It was answered —That the mere withdrawing his name from the action in which he had formally appeared as mandatary could not relieve him from his liability, as such, for the expences subsequently incurred; but, in order to effect such relief, it was a settled point, that it was necessary to enter formally on record the fact of such withdrawing, for the purpose of giving the other party an opportunity of requiring that a sufficient mandatary should be sisted.