GEORGE CAIRNS v ROBERT ANSTRUTHER (Court of Session)

In 1833, Cairns, as mandatary of John Rogers, who was abroad, raised an action for payment of a bill of exchange for L.500, against the defender.

When the case had come the length of revised papers, but before any judgment on the merits, the mandatary, 23d November 1836, withdrew from the process, and another was ordered to be sisted; but it soon appeared that Rogers had died in America in 1836, and no one was sisted, nor could any representative be found against whom to transfer the action.

In these circumstances the defender moved for expenses against Cairns, as mandatary, in respect, that without his interposition the action could not have gone on, and that, in regard to expenses, he was the party clearly liable, founding on the cases of Gordon and Gibson-Craig, 11th Dec. 1823, and Reoch, 14th May 1831.

The mandatary answered , that he was only liable subsidiarie with the mandant; and that it was essential that decree should first be obtained against the mandant to infer liability against the mandatary; that as that could not now be done, no claim for expenses lay against him; Darling's Practice , p. 98; Hamilton, 18th May 1822.

The Court were unanimously of opinion, that though the mandatary could withdraw from the process, so as to avoid liability for future expenses, he could not clear himself for those already incurred, for which decree must go out against him, even though no decerniture could pass against the mandant, as being, in so far as regards expenses, a party to the action.