Scottish Court of Session Decisions

The first is the case of Reoch v. Robb (14th May 1831, 9 S. 588), in which a foreigner, cited in an action of transference as the representative of a deceased defender, was held not liable to the jurisdiction of the Court. The point is stated in the rubric as quite purely raised, but it is important to observe that a question might have been raised whether there was or was not litiscontestation in the original action. That is not clear, but, whether or not, the judgment did not depend on any such question. The doctrine, as announced in the rubric, is clearly stated by Lord Gillies, who says,—“It is said that an action of transference is different from an original action against a foreigner; and that if the original action was raised against a deceased relative, it may be transferred against his representatives, though domiciled abroad. But this is erroneous. An action of transference cannot effectually proceed against any defenders who are not amenable to the jurisdiction of this Court.” Now the other Judges, though not expressing themselves in quite such clear terms on the abstract question, appear to me to proceed on the same ground. Then, in the later case of Cameron v. Chapman (9th March 1838, 16 S. 907), an action had been raised against an Englishman here, jurisdiction being founded on arrestment, and there were also arrestments on the dependence. The defender, who was edictally cited, died before expiry of the induciœ, and the action was called while his decease was still unknown; thereafter, without a new arrestment having been used, an action of transference was brought, and decree taken in absence, against his widow, also domiciled in England, alleged to be his executrix, but who had not confirmed or taken any steps to connect herself with the effects arrested. The first question was, whether, seeing the original defender had died after citation, but before expiry of the induciœ, the process was a depending process capable of being transferred; and second, if capable of being transferred, whether the Court had jurisdiction to decern in the transference against the widow who was domiciled in England? On this second point the opinion of seven of the consulted judges is to this effect:—“The ground on which the defenders chiefly rely is, that representation alone produces this effect, that is, that because the action has been correctly brought against the predecessor, his obligation to appear and defend necessarily transmits against his successor. This argument is plainly unsound. Even in the case of an action brought against a native, resident in this country, and therefore answerable to our courts ratione domicilii, which is the primary ground of jurisdiction and the most effectual of all, a foreigner admitted to represent him is not answerable on that account. This was expressly decided in Reoch v. Robb.” Now these two cases standing together, it is impossible to dispute the general proposition, that when an action has been brought against a party subject to the jurisdiction of the Court, and he dies before judgment is obtained, that action cannot be transferred against his representatives, unless they themselves are subject to the jurisdiction.

But it is contended, with some plausibility, that these two cases are distinguishable from the present, because it does not appear that in the former there was litiscontestation, and it is clear in the latter there was not. In the present case, however, there is certainly that, and something more; and it is said that the contract of litiscontestation creates an obligation separate from and additional to the original obligation on the defender, and which the original action was brought to enforce. That is quite sound, and I should be sorry to impugn the doctrine of litiscontestation as established in our law. But suppose there is an additional contract created by litiscontestation, and that that will transfer against the representatives of the deceased, still the matter lies on obligatio tantum, and if you seek to enforce against a foreigner you are still liable to this objection, that he is not subject to the jurisdiction of the Court. Therefore that argument adds nothing of strength to the pursuer's case, and does not detract from the authority of the cases I have mentioned, which proceed on the broad ground that, whether there is litiscontestation or not, a transference will not lie against a foreign executor who is not otherwise subject to the jurisdiction.

Therefore, I think the Lord Ordinary's interlocutor must be altered, and that we must sustain the objection to the jurisdiction.

Lord Curriehill concurred.

Lord Deas— There may be considerable hardship on the pursuer here. He brought his action against the defender, and got his verdict, and nothing remained to be done but to pronounce decree, unless there were a motion for a new trial. Then the defender died. Certainly it would be very expedient, if the action could go on to a conclusion against the representatives of the defender. But I am disposed to think that we have no jurisdiction. If this had been an action against the defender Gordon individually, there is no doubt that he would have been subject to the jurisdiction of the Court, and there is no doubt that if he had held this estate for himself and the other executor, qua executors, then there would be jurisdiction. It is not necessary to inquire whether, when a sole executor has a heritable estate in Scotland belonging to himself, that founds jurisdiction over him qua executor, for here there are two executors, and the executry estate is all vested in these two jointly. Suppose we held that if they both had heritable estates in Scotland there would be jurisdiction,— though on that I offer no opinion—that would not solve the case where one of them is not subject to the jurisdiction at all. So far as we see, Gordon cannot touch the executry estate without his co-executor's concurrence. If Gordon had realised the estate,

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