Scottish Court of Session Decisions

This was the continuation of a litigation which had been going on for some years in the Courts both of Scotland and of England. It was previously

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reported—March 18, 1874, ante, vol. xi. 359, and 1 R. 840; July 18, 1874, ante, vol. xi. 707, and 3 R. (H. of L.) 79, note; June 20, 1876, ante, vol. xiv. 1, and 3 R. (H. of L.) 77; and in England—November 1875 and March 1876, Law Reports, 5 Chan. Div. 394.

The Phosphate Sewage Company (Limited) and Edmund Peach, the official liquidator thereof, claimed upon the sequestrated estates of Peter Lawson & Son, merchants in Edinburgh, and of the individual members of that firm (upon which James A. Molleson, C.A., the respondent, was trustee), for £65, 000, which the claimants averred they had paid to Messrs Lawson as the price of a concession by the Government of San Domingo of the guano on the island of Alto Vela. The concession turned out to be worthless, and the claim was made for repayment of the price, which they alleged the Company had been induced to pay through the fraudulent actings of a combination of persons among whom were the four members of the firm of Peter Lawson & Son.

The first claim in the sequestration was lodged on 14th March 1873, but it was withdrawn on 24th June following, shortly before the period fixed by statute for the trustee adjudicating on the claims lodged, the claimants having on 19th April filed a bill in the English Court of Chancery for the same sum of £65, 000 against certain parties, including the respondent Mr Molleson as trustee for Peter Lawson & Son. Thereafter, On 28th June, the claimants lodged a second claim identical in terms with their first, which the respondent rejected on 27th October following. The trustee's deliverance was appealed to the Bill Chamber, and a record was made up and closed on 6th January 1874.

After various procedure—reported ante, vol. xi. 359 and 707, and 1 R. 840, and 3 R. (H. of L.) 79, note—the Court of Session eventually, on July 18, 1874, refused to sist the case until the issue of the Chancery suit, and on the proof which had been led in the case held that no case of fraud sufficient to implicate the Lawsons had been disclosed. The Phosphate Company appealed, but the House of Lords on the 22d June 1876 dismissed the appeal, and adhered to the judgment of the Court of Session.

On 19th April 1873 the appellants, as has been stated, raised a Chancery suit in England by way of bill of complaint against Edward Herzberg Hartmont and Robert Spear Begbie, who carried on business as merchants under the style of Hartmont & Company, John Ogle, a promoter of the appellants' Company, Francis William Englebach, and George Lawrence Keir, accountants, &c., and the respondent as trustee for Peter Lawson & Son, for, among other things, a declarator that under the circumstances in the bill the sale of the concession of 8th May 1869, therein mentioned, to the plaintiff Company, was fraudulent and ought to be set aside; and that the combination of the defendants (other than Molleson), and of the several members of the firm of Peter Lawson & Son, for the purposes in the bill mentioned was fraudulent, and the Company ought to be relieved from the consequences thereof, and also that it was a breach of trust on the part of the defendants, the directors of the plaintiff Company to pay the sum of £65, 000, or permit the same to be paid in the manner therein aforesaid out of the funds of the plaintiff Company for the purchase of the concession, and that the defendants (other than Molleson and another), all of whom were engaged either as venders or as promoters or directors or solicitors of the plaintiff Company, in the transactions, and the estate of Peter Lawson & Son, were jointly and severally liable to make good to the plaintiff Company the sum of £65, 000, together with interest thereon, and for a decree against the defendants for the payment of the said sum and interest, and that the plaintiff Company might be at liberty to prove against the estate of Peter Lawson & Son for the same accordingly. Answers were lodged by all the defendants, and several new matters coming to light in the answers, the appellants found it necessary from time to time to amend their bill of complaint, which was thirdly and finally amended on 3d March 1874. Mr Molleson, the respondent, pleaded against the jurisdiction of the Court of Chancery, but his pleas being repelled he continued a defendant, and maintained defences on the merits.

The hearing of that cause lasted sixteen days in November and December 1875, and on 22d March 1876 a decree was pronounced by Vice-Chancellor Malins, sitting in the Chancery Division of the High Court of Justice, whereby it was declared that the sale of the concession to the plaintiff Company was fraudulent, and it was ordered to be set aside, and it was also, inter alia, ordered “that the plaintiff Company”(the appellants) “be at liberty to prove against the estates of the said Robert Spear Begbie under the liquidation proceedings instituted by him, and also under the sequestrated estates of Peter Lawson & Son as a company, and Charles Lawson, Charles Lawson junior, Henry Graham Lawson, and George Stodart Lawson, the only partners in the said company, as such and as individuals, in the pleadings named for the said sum of £65, 000, and interest thereon at the rate of four pounds per cent. per annum from 31st May 1871 up to the dates of the said liquidation and sequestration respectively, and for the costs of this suit.” Against that decree the respondent appealed, but the Vice-Chancellor's decree was affirmed in the High Court of Justice, and the appeal dismissed with costs on 13th April 1877. That was notwithstanding the contention by the respondent Molleson that the suit had been decided in his favour by the decision of the House of Lords on 20th June 1876.

The Phosphate Company, founding on that decree, then lodged a third claim in the sequestration. This claim, which formed the immediate subject of the present action, was rejected by the trustee on 25th July 1877, on the ground that it was identical with the former claim which had been finally rejected by the House of Lords. The claimants, the Phosphate Sewage Company, appealed, and a record was made up.

The following averments had been made by the appellants in the former record:—By an agreement dated 8th May 1869 the Dominican Government had granted to Messrs Hartmont & Company a concession for the term of fifty years of the guano or phosphate of lime in the island of Alto Vela. This agreement provided, inter alia, art. 3—“Messrs Hartmont & Company bind themselves to export annually a quantity of at least 10, 000 tons of guano, guanito. or phosphate of lime;” and art. 7—“in case the grantees shall not export the minimum quantity stipulated in art. 3, the Dominican Government shall have the right to declare the present concession null, and to dispose of it as they shall see fit.” Arrangements had been made between Hartmont & Company and Peter Lawson & Son for the working and disposal of the concession, whereby the Lawsons had become entitled to a certain share in the. profits, and had the actual management of the concern from 1st January 1870. It had turned out that there was no guano on Alto Vela, and consequently the condition as to a minimum export could not be literally fulfilled. There was, however, another substance called phosphate of alumina, but of this—even assuming that it fell within the concession—nothing like the specified quantity had ever been exported. Phosphate of alumina was worthless as a substitute for guano, but it was believed that when combined with sewage, in accordance with certain patents, it might be profitably used as a manure, and it had been agreed to form a company—the Phosphate Sewage Company—with this object, “(Cond. 2) The three firms of Hartmont & Company, Peter Lawson & Son, and Englebach & Keir, and the said several members thereof individually (together with a Mr John Ogle), were the promoters of the appellants' company, and were respectively actively engaged in the transactions hereinafter mentioned, and respectively made large profits thereby.” “(Cond 8) In the early part of the year 1871 the said Edward Herzberg Hartmont and Robert Spear Begbie”(Hartmont's partner), “the several members of the said firm of Peter Lawson & Son, and the said John Ogle, well knowing (as the fact was) that through their default the said concession had become and was then voidable, and liable to forfeiture, determined to form a joint-stock company for the purpose (amongst other things) that the company should purchase the said concession from them at the price of £65, 000. For this purpose they entered into communication with the said Francis Englebach and George Laurence Keir, and a provisional committee was formed, consisting of the said Robert Spear Begbie, Francis William Englebach, George Laurence Keir, and a Mr William Lewis Grant, for the purpose of carrying the said scheme and design into effect. Various other persons have associated with them in carrying out the said scheme and design.”

With a view to the formation of the company, and the sale to it of the concession by the Dominican Government, Hartmont and Begbie had sold by indenture, dated 20th April 1871, their entire interest in the concession to the Lawsons. Thereafter, by articles of agreement, dated 28th April 1871, made between and executed by the Lawsons (therein called the vendors) on the one part, and Englebach and Keir (therein called the purchasers), for and on behalf of a company thus intended to be forthwith incorporated, to be called the Phosphate Sewage Company, Limited, of the other part, it had been agreed, inter alia, that when the company was formed the vendors should sell and the Company should purchase all the extra right, title, and interest belonging to the vendors in the island of Alto Vela for the sum of £65, 000. The sale had been completed by indenture, dated 28th May 1871. “(Cond. 12) Previously to the execution of the said indenture of the 20th April 1871, and the said agreement of the 28th April 1871, each of the several members of the firm of Peter Lawson & Son well knew (as the facts were) that it was least doubtful whether the said concession gave any right to the concessionaires to work phosphate of alumina, and also that in consequence of the minimum quantity of 10, 000 tons not having been exported in the year 1870, the said concession was at that time voidable and liable to be forfeited. Nevertheless the said several members of the firm of Peter Lawson & Son combined and colluded together with the parties to the said deeds and others to conceal these facts from the persons who might become shareholders in the appellants' company other than themselves, and to form the appellants' Company for the purchase of the said concession, and to invite the public to subscribe for shares in the appellants' Company, on the untrue representation that the said concession was a valid concession, and comprised the liberty to work phosphate of alumina, and that the same was in nowise void or voidable or of doubtful title, and in a suppression of the material facts of the case. In fact, the object and scheme of the said persons was to obtain the control of a large number of shares in the appellants' Company, representing the said purchase money of £65, 000, and afterwards to obtain a settling-day and quotation for the shares of the appellants' company on the Stock Exchange, and by speculating and trafficing in such shares to make large profits for themselves. The appellants' Company was not formed bona fide for the purpose of working the said concession and patents, but for the purpose of enabling the promoters and directors to make profits by transactions on the Stock Exchange, which they in point of fact did to a large extent.”

On the 5th October 1872 the Dominican Government had intimated that on 28th April 1871, the date of the transfer of the concession to the Company, the vendors’ right therein had already ceased to exist, owing to the fact that during the year 1870 only 1981 45 tons of guano had been exported, and after some further negotiations the Government had declared the concession absolutely forfeited.

The history of the origin of the Company underwent a longer investigation in the English Courts, and the appellants now made the following averments in their present condescendence:—“(Cond. 11) At this time the said E. H. Hartmont and R. S. Begbie, the several members of the firm of Peter Lawson & Son, and the said John Ogle, were well aware that through their default the concession of Alto Vela had become and then was voidable and liable to forfeiture, and was of little or no value; but they nevertheless determined to form a joint-stock company for the purpose (among other things) that the said Company should purchase the concession from them, with a view of dividing the purchase-money among themselves and those who assisted them in the scheme, and of making large profits by dealing in the shares of the Company on the Stock Exchange… . In pursuance of this scheme it was resolved that Peter Lawson & Son, who were then in good repute as a large and old-established mercantile firm, should appear to the public as the vendors of the concession, although they had sold all their interest to Hartmont, and that the said Messrs Englebach and Keir, with whom communications had been established, should be bribed

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by a sum of £15, 000 to assist in carrying the scheme into effect by representing the purchasers, viz., the Company which was to be formed, and who are now the appellants. (Cond. 14) It was arranged between the said promoters that the nominal price or purchase-money to be paid by the Company should be £65, 000, of which £50, 000 should be paid to Hartmont & Company, Lawson & Son, and the said John Ogle, in shares agreed on between themselves, and that £15, 000 should be paid to the said Englebach & Keir in the event of the scheme succeeding. The said £15, 000 was thus given as a bribe to Englebach & Keir to induce them to overlook objections to the title of the concession that was being sold, and to accept it as trustees for and on behalf of the proposed Company.” Cond. 15 related to the title which the Company got, and with regard to which counsel who were consulted had made several important requisitions. One of these was in regard to the forfeiture stipulated for by the Dominican Government in the event specified above. Englebach & Keir finally, “in collusion with the other promoters and at the urgent representations of Ogle and Forsyth, acting under the direction of Lawson & Son, positively instructed Mr Ramsden (the agent) to waive the requisitions, and to proceed to settle the agreement for purchase without delay, which was done… . . (Cond. 16) The said £15, 000 was subsequently paid or authorised to be paid by Peter Lawson & Son to Englebach & Keir (trustees for the Company), or at all events they were well aware that the said sum was to be paid to them with the view above mentioned, and they were parties to the whole transactions set forth above, the consequence of which was that by means of fraud, to which Peter Lawson & Son and the individual members of the firm were parties, the appellants' Company were induced to pay £65, 000 for a concession which was worthless, and which all the members of the said firm of Peter Lawson & Son well knew to be worthless, or at any rate of far less value than the price paid for it.”

The respondent averred “that the only matter pleaded upon in the Chancery suit (as appearing from the finally amended bill filed by the appellants therein), and not specially pleaded upon in the closed record in the former appeal, was the alleged payment of a sum of £15, 000 by the promoters of the Company to Messrs Englebach & Keir, which payment, and the particulars connected therewith, were known to the appellants long prior to the closing of the record in said former appeal, and prior to the lodging of the original condescendence in said appeal, having been set forth in the answer filed for John Ogle in said Chancery suit on 22d November 1873. Explained, that the said alleged payment was the subject of proof and discussion in the said former appeal, ” and generally “that the whole matters here alleged were within the record in the former appeal, and were the subject of proof and discussion in the said appeal.”

The appellants pleaded, inter alia—“(1) In respect of the decree of the Chancery Division of the High Court of Justice, mentioned in the affidavit, the appellants are entitled to be ranked on the sequestrated estates of Peter Lawson & Son, and of the individual members of the firm, in terms of the claim. (4) The judgments of the Court of Session and the House of Lords affirming the respondent's former deliverance, do not decide the question raised by the present appeal, and it is therefore not res judicata. (6) The bankrupts Peter Lawson & Son, and the individual members thereof, having, as set forth on record, fraudulently conspired with the other parties there mentioned to induce the appellants, by means of fraud, to pay £65, 000 for a valueless subject, they are, along with the other said parties, jointly and severally liable to the appellants in reparation to the amount claimed.”

The respondent pleaded, inter alia—“(1) Res judicata. The present claim is based on the same medium as the claim adjudicated on under the former appeal. (2) The whole material averments of the appellants having been made in the former appeal, or having been competent to be made therein and omitted, the appellants are not entitled to a re-trial of the case. (3) The decree of the High Court of Justice founded on is ineffectual to determine the validity of the appellants' claim in the sequestration.

The Lord Ordinary on the Bills ( Adam) sustained the first plea-in-law for the respondent and dismissed the appeal. His Lordship added this note.

Note. … …—The two claims, in so far as regards the principal sum [ The interest asked in the first claim was five, in the second four per cent] are identical. It would therefore appear that there is a conflict between the judgments of the High Court of Justice and of the House of Lords—the one sustaining and the other rejecting the claim of the appellants. The Lord Ordinary is of opinion that he cannot give effect to the judgment of the High Court of Justice in the same way as if the earlier judgment of the House of Lords had not been pronounced. He thinks that the House of Lords’ judgment must be taken as final and conclusive against the claim of the appellants as regards all matters which were within the record in the case in the Court of Session, and were adjudicated on in that case.

It was maintained, however, by the appellants, that the judgment of the High Court of Justice was entitled to receive effect, because it proceeded (1) upon the consideration of matters which were novtiter veniens ad notitiam, and were not founded on in the case in the Court of Session; and (2) because the present claim was founded on a new and different medium concludendi, which was not founded on, and was not adjudicated upon in the former claim.

The appellants did not maintain that the claimant in a sequestration was in a different position from the pursuer in an ordinary action as regards a plea of res judicata. It was, however, maintained by the respondent that a claimant in a sequestration was not in so favourable a position as the pursuer of an ordinary action, who, it was admitted, might insist in a second action on a different medium concludendi from that on which the first was founded, but that a claimant was bound to set forth the whole grounds of his claim at once, and that having had an opportunity of stating and proving his claim, and having failed, he was not entitled to insist in his claim a second time, although it might be insisted in upon different grounds.

It appears to the Lord Ordinary that there is a good deal to be said in support of this view,

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provided the grounds on which the second claim is founded were within the knowledge of the claimant, and might have been brought by him before the Court in support of the first claim; in the view, however, which the Lord Ordinary takes of this case it is unnecessary for him to decide the point.

The question in the present case comes to this—Whether, supposing there had been no proceedings at all in England, a second claim would have been competent in Scotland in respect of the matters now founded on? If such a claim be competent, and can be entertained, then the judgment of the High Court of Justice may or may not be examinable, or may or may not be conclusive, but it does not appear to the Lord Ordinary that the fact that the High Court of Justice has adjudicated on the matter affects the question of the competency of the claim.

The matters which are alleged not to have been stated or pleaded upon by the appellants in their condescendence and pleas in their former appeal are set forth in the sixth article of the present condescendence. The only new matter not specially pleaded upon in the closed record in the former appeal is the alleged agreement to pay £15, 000 as a bribe to Englebach and Keir, in order to induce them to accept the title to the concession of the guano and other phosphates on the Island of Alto Vela, and the circumstances under which the requisitions, made under the advice of counsel, were waived, and the title accepted, and the several deeds and agreements prepared and executed, by which the concession was foisted on the Company.

It is denied by the respondent that these matters were not known to the appellants long prior to the closing of the record in the former appeal, they having been set forth in the answer filed for John Ogle in the Chancery suit on 22d November 1873. This answer has not been produced to the Lord Ordinary, and he cannot say how the fact stands.

It does not, however, appear to be material whether that was so or not, because it is clear from the appellants' own averment that the facts in question were known to them long before the proof was led or any judgment pronounced in the case in the Court of Session. The proof in that case was led on the 16th of June 1874, while it is stated by the appellants that the facts in question came to their knowledge in the months of January and April of that year. If it be that these matters only came to their knowledge subsequent to the closing of the record in the Court of Session there would have been no difficulty in having the record opened up and the new matter added thereto. The appellants did not however take that course. They preferred taking the judgment of the Court on an imperfect case, and they have themselves to blame for the result.

It is further said that it was not until the discovery of documents obtained in the English suit, and the oral examination of parties and witnesses at the hearing, … that evidence was obtained to connect the firm of Peter Lawson & Son, and the individual members thereof, with the fraudulent scheme charged against them and with the additional acts of fraud and misrepresentation in connection with the concession and the Company now founded on. But it has not been shown to the Lord Ordinary that the documents might not have been recovered and the parties examined equally well in the Scotch suit. It may be that if the facts now founded on had been founded on and proved in the former appeal the result of that appeal might have been different. But failure to found on or to prove the whole facts constituting the fraud within the appellants' knowledge will not entitle them to try the case a second time.

A pursuer, however, by the law of Scotland, is not bound to include all his ground of action in one libel; and if the appellants can make out that the present claim is founded on new media concludendi they will be entitled to insist in it. It is stated by Erskine, book 4, 33, that ‘no defender is entitled to the plea of res judicata, or that the cause has been already finally determined, unless the decree founded on in proof of that allegation have been given forth in a process litigated between the same parties, or their ancestors or authors, respecting the same subject, and proceeding upon the same media concludendi that are contained in the subsequent action brought against him by the pursuer.’

The question therefore is, Whether the present claim is founded on a different medium concludendi from the former claim? The ground of action in both claims is that set forth in the sixth plea-in-law for the appellants, viz., That the bankrupts Peter Lawson & Son, and the individual members thereof, fraudulently conspired with certain other parties, including Englebach and Keir, to induce the appellants, by means of fraud, to pay £65, 000 for a valueless subject. The alleged new facts are just additional facts tending to substantiate the fraud founded on. If the appellants were to be now allowed to prove these facts in addition to what they previously proved, it may be that they would succeed in showing that Messrs Peter Lawson & Son fraudulently conspired to induce the appellants to pay £65, 000 for a worthless subject. But this is just the issue which they submitted to the Court and failed to prove in the former appeal.

The Lord Ordinary is therefore of opinion that the present case is not founded on any new or different medium concludendi from that founded on in the previous case.

It is said by the Lords Justices ( Phosphate Sewage Company v. Hartmont, 5 L.R. Chancery, p. 456) that the case presented to the House of Lords was ‘substantially different from the case which, by means of the discovery and evidence in the English suit the plaintiff Company has been enabled to allege and prove against the Lawsons. Nothing in our present judgment conflicts with anything said or decided in that House, except, perhaps, as to the one statement relating to the expenditure of the £39, 000, as to which, on the fullest consideration and reconsideration, we retain our opinion that it was calculated and intended to deceive, and was substantially therefore a false representation. And, in fact, the plaintiffs were enabled to place that part of the case, like the other part of it, in a very different way from that which they were able to do in the Scotch proceedings.’

The Lord Ordinary has not had to consider the evidence adduced in either case, but he does not doubt that the case was presented in a very ifferent way to the Lords Justices from what it

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was in the Scotch proceedings. But the case which was presented was the same case. It is the fault of the appellants themselves if it was not presented in the same light in the Scotch Courts as it was subsequently in the High Court of Justice. The facts were known to the appellants, and, as has been already stated, there was no reason why the discoveries or evidence subsequently obtained in the English suit might not have been equally well obtained in the Scotch suit. But it is not the law of Scotland that a party is entitled to try a cause a second time which he has previously tried and failed to establish, because he is, or alleges himself to be, able to adduce new or additional facts in support of it. As stated by the Lord Chancellor, a full opportunity was afforded to the parties in the Scotch suit to constitute their claim if they were able. If they did not allege in their condescendence in their first appeal as much as they alleged in their bill in Chancery in England, it is their act, and one for which no one but themselves is answerable—3 R. (H. of L.) 80, June 22, 1876.

On these grounds the Lord Ordinary has sustained the respondent's plea of res judicata.”

The appellants reclaimed, and argued—(a) As to the effect of the proceedings in Chancery, the first question was, Had the Court of Chancery jurisdiction to pronounce this decree supposing that there had been no previous trial of the question in Scotland? The whole transaction complained of was substantially an English transaction between parties who were all more or less English, for the Lawsons had an office in London. The Court of Chancery therefore had undoubted jurisdiction to determine whether a fraud had been committed, and further to declare that the Lawsons were parties to the fraud. Before bankruptcy the decree of a foreign court was unquestionably effectual to the constitution of a debt in this country, subject no doubt to a general right of examination by the Scotch Courts; and if after sequestration a foreign court had not the same jurisdiction in strict law and form, still such a decree might be received here as evidence of the bankrupt's liability in cases like the present, in which the question was much more conveniently tried abroad. Secondly, The previous proceedings in this Court and in the House of Lords made no difference. Although the report did not expressly show that the English Courts compared the Scotch record and their own bill, yet it was plain that the plea of res judicata was before them, and that they rejected it—see Lord Justice James’ observations, Law Reports, 5 Ch. Div. 449. Therefore, as they must be held to have decided the point rightly, their decree could not be set aside on that ground; it was not as if they had decided in ignorance of the proceedings here.

But ( b) throwing the Chancery suit out of account, was the question res judicata by reason of the previous proceedings in Scotland? In the first place, the appellants were claimants in a sequestration, and were therefore in the position of pursuers, not of defenders. The plea of “competent and omitted” did not apply to them, and it was of no moment what their knowledge of the circumstances was at the date of the proof. The only question was whether the present medium concludendi was the same as in the former action. The fraud now alleged as the medium concludendi was that Engelbach and Keir, the representatives of the company, received a bribe of £15, 000 to overlook the objections to the vendors’ title to the concession. Now, it might be that this allegation was in terms within the former record; but the plain meaning and intention of both parties there was to put a fraud of a different sort in issue, viz., the obtaining by means of Stock Exchange devices high prices for the shares of a company which the sellers knew to be in an insecure position. This was made clear from the 12th article of the former condescendence ( supra).

Authorities—Stair, iv, 1, 44, and 40, 16; Gillespie v. Russell, June 25, 1857, 19 D. 897, and July 1859, 3 Macq. 757; Strathmore, May 24. 1833, 11. S. 644; Macdonald, May 26, 1840, 2 D. 889—(H.L.) Aug. 11, 1842, 1 Bell's App. 819; Wilkie v. Cathcart, Nov. 19, 1870, 9 Macph, 168.

Argued for the respondent—(1) The question was plainly res judicata. If the two records were compared, it would be found that the same question was substantially raised in both, the present record being fuller merely in the details of the fraudulent scheme by which the company was to be brought into existence. Everything that was proved in the Chancery suit was relevant under the first record; and, in point of fact, both the payment of £15, 000 and the waiving of the requisitions were in evidence before the Scotch Courts. (2) Even were the medium concludendi new, the appellants must show that they were in ignorance of it at the time of the former proof. They were not like ordinary pursuers; they could not choose their own time; and must put forward all the grounds of claim within their knowledge at once, on the principle of “competent and omitted, ” otherwise a sequestration might be prolonged indefinitely. In point of fact, the answers for the various defendants in the Chancery suit made it plain that the appellants knew all that they now alleged, at all events before the proof in the former case, if not before the record was made up. (3) The Chancery case began after the concursus creditorum established by the sequestration, which moreover was recognised by the appellants who lodged a claim and led a proof thereon. The English Courts consequently had no jurisdiction.

Authorities— Southgate v. Montgomerie, 15 S. 507; Stewart, Feb. 20, 1838, 16 S. 632; Roy, 16 D. 51; Goetze v. Aders, Preyer Co., Nov. 24, 1874, 2 R. 150; Huntington Copper Company v. Henderson, Jan. 12, 1877, 4 R. (H.L.) 294, 15 Scot. Law Rep, 217.

At advising—