The proposers to bring a case
Duncan Cameron, John Cameron, James Lowrie, Duncan MacMillan, Alexander McPhee, Miners, all residing at Scotstown and Hugh Cameron (More), Miner residing at Ariundle, all in the parish of Ardnamurchan
30th April 1855
The Strontian mining company has been carrying mining operations for many years at Strontian, and these have been superintended and the business of the Company Conducted by a Manager. Besides the Manager there usually was a foreman that superintended the working of the Mines. This foreman was in the habit of telling jobs and had the principal superintendence of the Mines. The person that had this post before the Defender entered into a Contract with the Pursuers which has given rise to the present Action.
time the resident Manager of the Company was Mr
Barrat who it is understood left
Strontian before the Contract was entered into, but is still connected
with the Company. This Action is directed against the Defender as coming
in place of the person that entered into the Contract, and as such representing
The Sheriff Substitute has very strong doubts of the Competency of sisting the Company. The present Defender is not in any way responsible for the actings of his predecessor, and nothing has appeared like a right to sue one foreman of the Company under Contracts of another. Then the Action is improperly directed - for he cannot be sued as either representing the Company or his predecessor. The Company is the principal party, and it may be bound by the Contracts of its servants, but when these Contracts come to be enforced against the Company it must be sued (as) the principal party. If the principal is let out and a person in no way liable is proceeded against there is an imperfection in the essence of the Actin that cannot be rectified in the manner proposed.
Initialled - W.R.
Decision at appeal upholding the Sheriff's earlier ruling
2nd May 1855
The Sheriff adopts the reasoning in the Note of the Sheriff Substitute which is in conformity with the Decisions in the case of McMillan vs. MacCulloch, Jany. 28 1842 4 W.B.M. 492 and the two cases there referred to King vs. Shirra 5 sch 231 and Russell 23 May 1837 15 Sh. These cases seem to establish not only that the action is wrongly laid against the Manager but that the defect cannot be cured by calling the Company now. In McMillan vs. MacCulloch the Lord Ordinary observed "The summons was directed against the Respondent solely as an agent which was an incompetent ground on the face of the Summons for claiming the dues libelled on from the Defender". In the present case the Defender is called as Manager on behalf of and representing the running Company, and this being an incompetent ground of Action on the face of the Summons it falls to be dismissed.
The mere fact of the Contract libelled on having been entered into with a previous Manager does not seem so material, because the Defender admits having adopted it and it was renewed for the Month of March after his appointment. But the action is not laid against him on the ground of employment by him or adoption by him of the contract and as being liable jointly or alternatively with the Company, but solely on the incompetent ground that he represents the company.
mode of calling the Company (had it been competent) would have been by
a supplementary Summons while the Defender would have been entitled to
the expenses hitherto incurred by him (see case of Barbour v. Smith 2
Sh 795) so that the Pursuers would have gained little or nothing had their
motion been granted. 'Sisting' a party implies his voluntary appearance
in the Action and no mere intimation to a citation of the Company would
have enabled the Pursuers to get decree against them without petitory
conclusions for which a Summons is secured.
Tobermory 13th June 1855
Substitute having considered the Denenders Account of Expanses, Modifies
the same at Four pounds Ffiteen Shillings and decerns(?)