Scottish Court of Session Decisions

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Cite as: [1868] SLR 5_688, [1868] ScotLR 5_688

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SCOTTISH_SLR_Court_of_Session

Page: 688↓

Court of Session Inner House First Division.

Saturday, July 18. 1868.

5 SLR 688

Hart & Son

v.

Irvine.

Subject_1Jurisdiction
Subject_2Meditatio Fugæ
Subject_3Caution de judicio sisti.
Facts:

A foreign debtor, apprehended on a meditations fugæ warrant, found caution de judicio sisti, and was liberated. He did not seek to have the proceedings set aside. Held that he could not decline the jurisdiction of the Scotch courts in an action by the creditors at whose instance he had been apprehended, he having consented to submit himself to the courts of this country on condition of being liberated.

Headnote:

Messrs Lemon, Hart & Son, wine merchants, London, raised this action against the Hon. Nicol Irvine, merchant, Accra, West Coast of Africa. While the defender was in Kirkwall in 1867, on a visit, the pursuers caused him to be apprehended on a meditatione fugæ warrant. On this warrant he was detained till he found caution de judicio sisti. The defender's first plea in law was want of jurisdiction on the part of the Court, on the ground that he had his domicile at Accra where there were law courts in which the action might have been brought, and that no jurisdiction had been competently founded against him in Scotland. The Lord Ordinary ( Barcaple) repelled this plea, on the ground that the defender not having sought redress in any competent form against the proceedings in the application for his apprehension as in meditatione fugæ, and having found caution de judicio sisti, and thereby obtained his liberation, made it impossible for him to decline the jurisdiction of the Court.

The defender reclaimed.

Judgment:

Young and Fraser, for him, stated that he had raised an action of reduction of the proceedings before the Sheriff-substitute at Kirkwall, whereby the meditatione fugæ warrant was obtained, and that the summons therein had been served on the pursuers the previous night.

The Dean of Faculty and Monro in reply.

At advising—

Lord President—The point does not admit of the smallest dispute. The ground of the Lord Ordinary's interlocutor is simply this, that in consideration of getting liberation from custody, the defender consented to submit himself to the courts of this country. That is the true meaning of the bond de judicio sisti. I cannot do better than refer to the case of Muir v. Collett, 23d November 1866, 5 Macph. 47, where the law relating to this was settled. If the proceedings in the petition to the Sheriff-substitute for obtaining the meditatione fugæ warrant were incompetent this raises a wider question. That would be a good ground for bringing an action of reduction of these proceedings; but it is not the case we have before us just now. The Lord Ordinary's interlocutor must be adhered to.

Lord Deas—I concur. The interlocutor of the Sheriff-substitute was pronounced on the 26th October 1867, and caution de judicio sisti was found the same day. That interlocutor might have been brought under review of this court if the defender had wished, and the present proceedings would have been obviated. But that was not done, and no reduction was brought till last night. It is plain to my mind that the Lord Ordinary could do nothing but what he did; and that the bringing of the reduction within the last day or two makes no difference.

Lord Ardmillan—I also concur. In the absence of a reduction, the Lord Ordinary decided rightly.

Solicitors: Agents for Pursuers— Morton, Whitehead & Greig, W.S.

Agents for Defender— Scarth & Scott, W.S.

1868

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