Scottish Court of Session Decisions

Sequel of the case reported ante, p. 608, which see. The Court then ordered minutes to be lodged respecting the preliminary plea stated by. Miss Irvine, of want of jurisdiction in the Scottish Courts. Most of the facts out of which the plea arose are given in the previous report; but it was now further stated that Miss Irvine had been born in England and constantly domiciled there, where her father was also domiciled, during her whole life; that she had not been for forty days within Scotland at the date of her personal citation; that she was then merely on a visit at the house of her sister Lady William Douglas; and that, though she remained there for some months afterwards, it was not animo remanendi, but in consequence of the indisposition of her mother, on whom she was attending. It was stated by the pursuer that, besides the estate of Denino, there were other lands, also holding of the Crown, but in the superiority of which, the late Walter Irvine was not infeft, and to which Miss Irvine and her sisters made up a title by a charter of resignation, in virtue of an unexecuted procuratory taken up by their service to their father. They took infeftment on the charter, and, as Walter Irvine had been infeft in the dominium utile of these lands, they then granted precept of clare constat in their own favour, and were thus infeft in the dominium utile. There were also certain lands holding of a subject-superior, to which Miss Irvine and her sisters made up a title by obtaining a precept of clare constat as heirs of their father, after which they conveyed those lands along with Denino, and the other Crown lands to the marriage-trustees of Lady William Douglas. The whole lands were conveyed on the same terms, and with a double manner of holding. Under the precept in the disposition, the trustees took infeftment in all these lands, which was unconfirmed at the date of the defender's citation. The defender alleged that any estate of mid-superiority remaining to her was of no value whatever, but merely nominal.

Pleaded by the Pursuer—

1. The object of the action was to reduce deeds executed in Scotland, which had been fraudulently impetrated by the defender's father the late Walter Irvine, and to call the defender to an accounting. The facts being, hoc statu, assumed, Scotland was the forum delicti, as the deeds were there completed by signature; and, to civil effects, such as the contract of reparation, Scotland was the forum contractus.

2. The late Walter Irvine was amenable to the jurisdiction of the Scottish courts, in respect, inter alia, of holding lands in Scotland. Miss Irvine was one of his heirs and representatives, having taken up a lucrative succession including these lands. The service alone to her father might be regarded as a contract of liability quoad her father's creditors, making Scotland the forum contractus as to her, as much as it had been in respect to her father. She was still vested in these lands, at the date of citation, as the marriage-trustees merely held base of her and her sister. Miss Irvine was therefore as amenable to the jurisdiction of the Scottish courts, as her father, if alive, would have been. ¹

3. The personal citation was, per se, sufficient. The presumptive domicile arising from a residence for forty days was only necessary to make a citation good when not given personally, but only at the domicile. Personal citation was as good, as citation at the domicile after a residence of forty days. And besides, in this case, Miss Irvine remained for some months in Scotland after citation.

4. Miss Irvine had previously pleaded in the Scottish courts, in a question with this pursuer, expressly as the heir and representative of Walter Irvine. The present action was already sustained against her sister and co-heiress. And, in all the circumstances, the jurisdiction of the courts of Scotland was clearly well founded against the defender.

Pleaded by the Defender—

1. It was only as to civil effects that any action was maintainable against her, the mere descendant of the party accused. She had nothing to do with any forum delicti. In regard to the civil liability of reparation, if contracted at all, it was contracted in England where the late Walter Irvine was domiciled at the date when it was incurred, and where he continued

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¹ 1 Ersk. 2, 20—Dig. L. 5, t. 1. c. 19 & 20—Dods, July 11, 1745 (4794)—Wiche, June 27,1801 (Diet, voce Forum Comp.; Appx. No. 2.)—Paterson, Nov. 20, 1672 (3725)—Utterton, 1811 (Ferg. Rep. 25)—Levett, 1816 (Ferg. Rep. 79)—Butler, March 7, 1817 (Ferg. Rep. 209)—Kibblewhile, Dec. 21, 1816 (Ferg. Rep. 226).

domiciled till his death. At all events, it was the forum solutionis which was to be regarded in that, or other debts, and that was the forum of the debtor's domicile, which was England.

2. Though the Court had found that the defender and her sister were representatives of their late father, that did not, per se, subject them to the jurisdiction of every court to which he was subject. And in so far as his possession of Scottish heritage might have subjected him to Scottish jurisdiction, it could not apply to the defender, who had merely a nominal estate in such heritage which was of no value. She had made up a title, as enjoined by her father's will, and instantly conveyed the heritage to the marriage-trustees of her sister, with a double manner of holding, so that they might obtain confirmation of their present infeftments quandocunque, and throw her out of the feudal progress.

3. Unless a court possessed jurisdiction aliunde, the mere execution of citation could not confer it, and was indeed an unwarrantable act if done by authority of a court not possessing jurisdiction. If the Court possessed jurisdiction aliunde, it might be that personal citation would have been good, but not otherwise. ¹

4. The defender's appearance in a former and separate action, though it might prorogate the jurisdiction of the Scottish Courts as to that action, did not prorogate it as to any other. The fact that the action might proceed against the defender's sister, whether the defender was amenable to the court or not, took away every ground of expediency, which could have been alleged for sustaining jurisdiction against the defender. And, even taking all the circumstances into view there was no jurisdiction founded in Scotland against the defender.

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¹ 1 Ersk. 2, 16—Voet. L. 5, t. 1. § 92 and 12—Denizarto voce Domicile—Story's Conflict of Laws, § 44; and references there made.