Scottish Court of Session Decisions

This was an action by Mrs Eliza Lynch, sometime residing at Paraguay, against Dr Stewart, sometime residing in Paraguay, against whom arrestments had been used jurisdictionis fundandæ causa, concluding for a sum of £14,645.

The pursuer alleged:—“In the month of October 1868 the pursuer and defender were both at the headquarters for the time of the Paraguayan army, at a place called Pikysyri in Paraguay. On or about the 17th day of that month the pursuer deposited in the hands of the defender a quantity of specie belonging to her, consisting of 4400 ounces of coined gold, and 4659 1 2 patacons. The defender undertook to transmit the said specie to this country; to lodge the proceeds thereof in the Royal Bank of Scotland in his own name; and to hold the same for behoof, and on account of the pursuer, until the amount should be restored to her.”

The defender alleged that the pursuer was a married woman, whose husband was a domiciled Frenchman, and pleaded inter alia, “no title to sue,” and “ forum non competens.”

The Lord Ordinary ( Ormidale) pronounced the following interlocutor:—“The Lord Ordinary having heard counsel for the parties on the defender's first and second pleas in law, and having considered the argument and proceedings; repels the second of said pleas, which is to the effect that this Court is incompetent, or at any rate is not a convenient or appropriate forum for trying the questions raised in the present suit; and, in regard to the first of said pleas, finds, before disposing of it, that it is proper that the question, whether the pursuer is a married woman, as alleged by the defender, as well as all matters of foreign law bearing on that question, or otherwise on said first plea in law, should be inquired into and ascertained: Reserves in the meantime all questions of expenses, and appoints the case to be enrolled in the Procedure Roll, that parties may be heard as to the steps now to be taken.

Note.—Although the defender's plea of non forum competens is stated as his second in the record, it properly falls to be first considered and disposed of, for the obvious reason that, if this is not the competent or convenient forum for trying the questions raised between the parties, the action ought to be at once dismissed without determining the question of title or any other question. Both parties expressed themselves satisfied as to this at the debate before the Lord Ordinary.

1. The first question is that which is raised by the defender's second plea in law, now repelled by the Lord Ordinary, viz., ‘ non forum competens, or at any rate this Court is not a convenient or appropriate forum for trying the questions raised in the present suit.’ The grounds upon which the Lord Ordinary has proceeded in repelling this plea may be shortly summarized as follows:—(1) It is not said that there is any want of jurisdiction. No plea of that description has been taken by the defender, nor indeed could be, for the proceeds of the specie which forms the subject of dispute, and which the defender says belongs to him, stands arrested in the hands of the Royal Bank, at the instance of the pursuer. There can be no doubt, therefore, of the jurisdiction of this Court. (2) The only other country, if not Scotland, in which, according to the defender's contention, the action ought to have been brought, is Paraguay. But it is not said that either of the parties have their domicile in, or are natives of that country. The defender is a Scotchman, and the pursuer an Englishwoman. The pursuer is now resident in London, and the defender describes himself in the title to his revised defences (No. 22 of process), lodged so recently as the 30th of January of the present year, as ‘Doctor of Medicine, sometime residing

Page: 573↓

in Paraguay, thereafter in Edinburgh, and now or lately residing in Paraguay, or other part of South America, or elsewhere furth of Scotland.’ But at the debate it was admitted by his counsel, in answer to the Lord Ordinary's inquiry, that he was at present in Scotland. The Lord Ordinary cannot therefore be much influenced by the defender's statement towards the end of the second article of his statement of facts, to the effect that he ‘resided continuously in Paraguay from 1857 till December 1868. He has again gone to Paraguay, where he, his wife, and children now are. He was there when the present action was instituted, and has been so ever since, and is now resident there.’ It is at any rate, and to say the least of it, very doubtful whether the Courts of Paraguay, or any other country except Scotland, have jurisdiction over the defender. Nor does the Lord Ordinary think it sufficient for the defender to state, as he has done by the minute, No. 30 of process, ‘that he was ready and willing to answer in the Courts of Paraguay to any writ or action which the pursuer might bring against him with reference to the subject matter of the present process;’ for whatever may be the willingness of the defender, it by no means follows that an action would be sustained against him in Paraguay, if neither de facto nor de jure the courts of that country have jurisdiction over him. In the case of Graham v. Stevenson, 9th August 1788 (Hume's Reports, p. 250), a similar plea to the present was repelled, although the party maintaining it, and who argued that the action ought to have been brought in England, offered to find caution to answer to any suit that might be instituted against him in that country. So also in the recent case of Longworth v. Hope, &c., 1st July 1865 ( 3 Macph., 1049), an action was sustained in this Court, notwithstanding that the defenders were English, and offered to meet the pursuer in the English Courts. And (3) there are in the peculiar circumstances of this case obvious reasons in justice, independently of the reasons already adverted to, against sustaining the present plea, and leaving it to the pursuer to proceed in the Courts of Paraguay. On the defender's own showing, especially in the 16th article of his statement of facts, the rights and interests to which she lays claim in the present action have been already prejudged against her by the government if not by the tribunals of Paraguay. Besides, if the present action were dismissed, her hold over the funds in dispute, and her chance of recovering them, however successful she might be in vindicating her right to them, might be entirely defeated and cut off. Upon the whole, therefore, the Lord Ordinary has had little hesitation in repelling the defender's second plea in law

2. He has felt some difficulty, however, in regard to the defender's first plea in law, arising chiefly from the consideration that to go into the inquiry whether the pursuer is or is not a married woman—the wife of Monsieur Quatrefages—as averred by the defender, must necessarily lead to considerable expense and delay. But the Lord Ordinary has been unable to see how this inquiry can be well avoided, nor is he satisfied that it would in the end be for the pursuer's advantage that the defender's plea or defence against her title to sue should be tried and determined first on the footing that she is the wife of Monsieur Quatrefages; and then, supposing that she were to be unsuccessful in maintaining her title on that footing, to commence the contest of new on the footing that she is not the wife of Monsieur Quatrefages. Two such separate courses of litigation would not unlikely prove in the result to be more expensive and dilatory than the disposal at once of the question of marriage or no marriage. It seems to be the natural and proper course to have this point, on which the defence or plea of the pursuer's want of title to sue entirely depends, at once taken up and determined, for if it were, after the necessary inquiry, to turn out that de facto the pursuer's averment that she is not a married woman is true, the defender's plea or defence against her title to sue would be definitively and conclusively disposed of against him. The Lord Ordinary, therefore, thinks that the preferable and correct course is to have the fact of marriage or no marriage, in the first place, cleared up, rather than to proceed on the assumption that there is a marriage, while, after all, the fact may be otherwise. Besides, the Lord Ordinary may add that he is not satisfied that in law the sisting of Monsieur Quatrefages, assuming him to be the pursuer's husband as proposed by the minute, No. 31 of process, would be sufficient. The action has been brought, and the record made up and closed, at the instance of Mrs Lynch alone. She claims the funds in dispute as belonging to her absolutely in her own right. But if in reality she be a married woman, and the funds in dispute belong exclusively to her husband jure mariti, as averred and offered to be established by the defender, it is very doubtful whether the sisting and concurrence now of the husband could cure the radical defect which, ex hypothese, attached to the instance of the wife. If, indeed, the funds belonged to the pursuer and not to her husband, his concurrence for his interest, although only made cum processu, might be sufficient; but it is another and different matter altogether whether, assuming that the pursuer neither has nor ever had any right to the disputed funds, but that the same belong to her husband exclusively, his sisting himself now as a party to the action is sufficient. Another reason for holding that it would be inexpedient to proceed in disposing of the defender's plea against the pursuer's title to sue on the assumption that she is a married woman, and that her husband has not only offered to sist himself, but has by the deeds produced renounced all right he may have to the disputed funds in her favour, is, that even this matter and the deeds referred to being manifestly foreign deeds, may require proof of foreign law before their precise meaning and effect in the present question now to be disposed of can be determined. If so, it is better that the evidence as to the fact of marriage or no marriage should be gone into at once, and that all the evidence necessary and competent in relation to the defender's plea or defence against the pursuer's title to sue should be at the same time exhausted.”

The pursuer reclaimed.

Trayner and Burnet for her.

The Solicitor-General ( Clark) and Maclean for the respondent.

The Court adhered to the Lord Ordinary's judgment as to the plea of forum non competens.

On the other question, they held that the defect in the pursuer's title, if it were a defect, was cured by the offer by the alleged husband to sist himself as a party to the action. The Court therefore altered the Lord Ordinary's judgment on this question;

Page: 574↓

and the husband having been sisted, sustained the pursuer's title to sue.