Scottish Court of Session Decisions

The pursuers of this action are “the Antermony Coal Company, Antermony, Dumbartonshire, and Auston & Company, coalmasters at Hamilton and Glasgow, and Walter Wingate, coalmaster at Shirva, in the county of Dumbarton, at present in Australia, or elsewhere furth of Scotland, being the individual partners of the said firm of the Antermony Coal Company.” The defenders are “Walter Wingate & Company, coal masters at Shirva aforesaid, and the said Walter Wingate, and George Cadell Bruce, civil engineer in Edinburgh, the individual partners of that firm.” The defender Bruce, who alone appeared to defend, moved that the pursuer Walter Wingate should be ordained to sist a mandatory. The Lord Ordinary (Barcaple) refused the motion.

The defender reclaimed, and argued—An action at the instance of a company with a descriptive firm is not competent unless at least three of the partners are parties to it. In this case one of the two partners, Mr Wingate, is in Australia. There are no means of knowing, except by production of a mandate, whether he has authorised the action, and without his authority the action cannot proceed. For all that appears on record, the interest of Mr Wingate in the company may be greater than that of Austin & Co. If it be the fact that Mr Wingate's address is unknown to the other pursuers, that circumstance may raise a special case which the Court will provide for by appointing a judicial factor or otherwise, for the purpose of enabling the company to recover its debts.

Answered for the pursuers—The Lord Ordinary has already by an interlocutor, now final, repelled the defender's plea of no title to sue. This motion is just a repetition of that plea. There is here, besides the company, a solvent partner in this country, responsible for the expenses and the proper conduct of the action. It is not in these circumstances necessary that the other partner should sist a mandatory.

The Court to-day adhered. The fact that Walter Wingate was abroad appeared on the face of the summons. The motion for a mandatory was a motion in the cause. It was not a plea against title. If the objection of want of authority was within any of the pleas it was within the first, which has been repelled. But if it had been intended to raise the objection to title, which had been argued, there should have been a distinct statement on record that Wingate had not authorised the action. As to the motion otherwise the Court thought that looking to the circumstances, it was not a case where a mandate was necessary. There was a partner in this country whose solvency was not questioned.