Scottish Court of Session Decisions

Lord President—By the interlocutor under review the Lord Ordinary has sustained the first plea in law for the co-defender, to the effect that Colonel Hibbert is not subject to the jurisdiction of the Court. He is co-defender in an action of divorce for adultery, and of course the only conclusion against him is for expenses. This is therefore not a question of jurisdiction for purposes of divorce, but simply as if it were a question of personal debt.

The first of the two reasons on account of which it is alleged there is jurisdiction against Colonel Hibbert is the 7th clause of the Conjugal Eights Act. I think it does not subject Colonel Hibbert to our jurisdiction. It only gives the pursuer a right to cite him in the case, if otherwise under our jurisdiction.

The second ground put forward for subjecting Colonel Hibbert to our jurisdiction is, that he is lessee of shootings in Scotland. This involves a new and interesting point. That a man should be subject to our jurisdiction in so far as regards any heritable estate he may have in Scotland is an obvious legal proposition. But this principle has been carried by a long course of decisions to make a proprietor subject in other questions than those in regard to his estate. This has been so long settled that we need not go back on it. And I think it has been also settled by a long train of decisions that the proprietor's title need not have been feudalized. He may only possess on apparency, or as having a beneficiary right; and either is sufficient. But the defender says that, even though it be so, he is not subject to the jurisdiction of the Scotch Courts unless he possess in the character of owner. Having given this subject my most attentive consideration, I have come to the conclusion that where a person is in the beneficial enjoyment of land under a good civil or actual title he is subject to our jurisdiction. And I come to this conclusion a good deal on a consideration of the extraordinary circumstances that might arise if he were not. Take the case of a person who possesses a long lease of minerals. Or what is a very common case, a lease almost amounting to perpetuity. I do not mean such leases as the Ormiston leases in East Lothian. But there is the example of a building lease. The lessee is practically proprietor of the ground, on which he may have erected very valuable buildings, for a hundred, or perhaps a thousand years. And surely it would be absurd to say that such a person is not subject to our jurisdiction.

But it is a maxim of law that a Court should not arrogate a jurisdiction under which it cannot enforce its decrees. Now, tested by that principle, I think this conclusion, to which I have come not without difficulty, but eventually without doubt, satisfies the test. It may be said that the tenant might sell or assign his right, and that so there would be nothing left against which the pursuer could enforce our decree. But the same result might happen in the case of a proprietor, and it could not he disputed that he is subject to our jurisdiction. The remedy could be the same in each case—to use an inhibition on the dependence of the action. Such a course would fix the right to the subjects on the lessee. I therefore think, on the whole question, that we should recal the Lord Ordinary's interlocutor, and find that in the action before us Colonel Hibbert is subject to the jurisdiction of the Court.

Lord Deas was absent.

Lord Ardmillan—I think this is a question of delicacy, but I am quite of opinion with your Lordship. I notice first, as a matter of form, the argument that the Conjugal Eights Act gives us jurisdiction over the co-defender Colonel Hibbert. I cannot assent to that argument. I think the Conjugal Eights Act only gives a power of citation, but does not ipso facto subject the co-defender to the jurisdiction of the Court.

On the second point, whether the lessee of heritable property is subject to our jurisdiction, I entirely agree with your Lordship. The fundamental principle by which an owner of property in Scotland is subject to the jurisdicton of the Courts of Scotland is, that every owner of ground in Scotland ought to have some Court to which he may be entitled to look for protection. I agree with your Lordship that ownership is not necessary to subject the possessor of heritage to our jurisdiction. It would never do to hold that a person holding heritable property under a lease of 999 years is not subject to jurisdiction here. And there is no difference between a tenant for 19 years and a tenant for 999 years. Neither of them is an owner in the proper sense of the word; but I think the possession of the kind that Colonel Hibbert's is, is sufficient. Nor would there be more difficulty in his case than in that of a proprietor in giving our decree effect. Just as the tenant might sell or assign so might a proprietor. And the use of inhibition would be as effectual in the one case as in the other. And the fact that the proprietor's title has not been completed does not free him from our jurisdiction. I entirely reserve my opinion on the question whether the lessee of what in common parlance is termed a mere shooting would be subject to our jurisdiction. But that is not the case of Colonel Hibbert. He is not lessee of the shootings merely, but also of the house, gardens and other heritable subjects. And I think the lease of these subjects brings him under the jurisdiction of the courts of this country.

Lord Kinloch—The question before us is, whether the Court has jurisdiction over Colonel Hibbert, who has been sought to be made a co-defender in the present action of divorce.

This question must, I think, be determined on the footing of the action involving against Colonel Hibbert simply a money claim. He is sought to be made defender only to the effect of being subjected in expenses in a certain event.

I am of opinion that, if not otherwise founded, jurisdiction is not created against Colonel Hibbert by the 7th section of the Conjugal Eights Act. That section authorises the pursuer to make the alleged co-adulterer a party defender; which would otherwise have not been competent. But I think it does no more. It allows citation; but only as in the usual case, and that which is always to be presumed, to wit, where there is jurisdiction. It assumes jurisdiction, it does not create it. To confer such jurisdiction, where it was not antecedently possessed, would require a very express and unambiguous enactment; and none such, I think, occurs. No such thing, I think, was intended as to give the Court power to call, de plano, an alleged

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