Scottish Court of Session Decisions

Neither does section 46 of the recent Sheriff Court Act (39 and 40 Vict. cap. 70) afford any aid to the appellant in this matter, for that enactment has reference not to a defender residing abroad, but merely to a defender residing in a different county from that in which the action is brought; and even in such a case the action is rendered competent only in the event of the defender being cited personally or at his place of business. Now here the defender does not reside in another county, but in another country, viz., Ceylon, and he has not been cited personally or at his place of business.

For these reasons I am of the opinion that the circumstance of the defender in this case having heritable estate in Banffshire does not render him amenable to the jurisdiction of the Sheriff of that county in such an action as the present.

It may be further objected to the competency of the action that the defender, although residing out of Scotland, was cited upon induciœ of seven days only, in place of fourteen, as required by section 8 of the Sheriff Court Act. Nor do I think it enough in answer to this to say that by sub-division (2) of section 12 of the Act it is provided that “A party who appears shall not be permitted to state any objection to the regularity of the execution or service as against himself of the petition by which he is convened;” for here the objection is not to the effect that the execution or service merely is irregular, but that there has been no execution or service or citation at all, such as the law applicable to the position of the defender requires.

In this state of matters I cannot doubt that the interlocutor of the Sheriff-Substitute, adhered to as it was by the Sheriff-Principal, dismissing the present action as incompetent, is right and ought to be affirmed.

Lord Gifford—I agree with the Sheriffs in this case that at the date of the action the defender James Maitland Knight was not subject to the jurisdiction of the Sheriff of Banff, Elgin, and Nairn.

The defender is designed in the petition as a “coffee planter, Ceylon, and presently joint tenant of the farm of Skiebhill, Aberchirder, in the parish of Marnoch and the county of Banff,” and the action is directed against the defender as an individual for the price and hire of a chestnut mare purchased, or alternatively hired, by the defender from the pursuer in June and July 1877.

It is admitted that the defender has no personal residence either within the counties or within Scotland, but that for more than a year before the action was raised he was resident in Ceylon, and was engaged there as a coffee planter, and accordingly the pursuer must instruct that the defender is subject to the Sheriff's jurisdiction on some other ground than the ordinary one of residence within the territory. Now, I am of opinion that the pursuer has failed to establish, or even relevantly to aver, any sufficient ground on which the defender could be subjected to the jurisdiction of the Sheriff of Banff. The pursuer relies on various grounds as constituting jurisdiction against the defender. I think they are all insufficient.

First, the pursuer maintains, that although the defender has been more than a year absent in Ceylon, he still retains his domicile of origin in Scotland or in Banffshire, his absence in Ceylon being merely for temporary purposes et sine animo remanendi. But it is perfectly needless to inquire whether the defender has retained his domicile of origin or not as regards questions of status or questions of succession or of allegiance, for it is quite settled that mere domicile of origin will not found jurisdiction in a personal action for debt or ex contractu, and it is clear that there is here no domicile of jurisdiction. There is no residence or home where the party can be cited, or where his family and servants are.

Second, The pursuer urges that the contract of sale or hire upon which the action is founded was made in Banffshire. But the lex loci contractus is not enough by itself without personal citation or some other ground of jurisdiction.

Third, The pursuer next says that the defender is possessed of heritable property in the county, and no doubt this makes the defender subject to the jurisdiction of the Supreme Court in all actions excepting those relating to status. But mere proprietorship of heritable subjects has never been held to subject the owner to the jurisdiction of a Sheriff, he not being personally cited within the county, and possibly never having been within Scotland in his life. It is in this sense that the Supreme Court is the commune forum of all persons residing abroad, and who must be edictally cited as such.

Fourth, The ground, however, chiefly relied upon by the pursuer is that the defender is joint tenant and occupant with his father John Knight of the farm and lands of Skeibhill, near Aberchirder, in the county of Banff, and by the terms of the lease bound to personal residence upon the farm. In connection with this the pursuer pleads the terms of the 46th section of the Sheriff Court Act of 1876.

It appears to me that this plea of the pursuer is the only one which raises any difficulty in the case, and it was supported with great ingenuity at the bar. When narrowly examined, however, its insufficiency becomes apparent.

In the first place, mere joint tenancy in a farm, apart from any allegation of carrying on business with a place of business, is clearly not enough. Even joint ownership or sole ownership would not create a Sheriff Court jurisdiction, as I have already observed. Now, if ownership would not do, it would be a strong thing to hold that mere joint tenancy without anything else would be enough.

Then in reference to the provision of the recent Sheriff Court Act, although joint tenancy and joint occupancy of the farm along with the father is averred, it is not said that the father and son carry on business as partners in the county, or have as such any place of business there. It was said this was implied in the averment of joint occupancy of the farm, and that the farmhouse must necessarily be the place of business of all the joint occupants of the farm, however numerous they might be, and although none of them might in point of fact reside there. I cannot assent to this. The farmhouse might be occupied by only one of the joint tenants, or perhaps only by a grieve, and in no sense can a farmhouse be held to be the place of business of all the joint tenants of the farm. And then it is not said that the contract sued on had any relation whatever to the farm business, or that the horse was purchased or hired for the use of the farm, although it is said that it is now employed in farm work. On the contrary, it is expressly averred that the mare was purchased or hired by the defender for his personal use as an individual, and not for the use of the farm or the joint tenants thereof. It appears to me therefore that the provision in the recent statute does not apply. I think that provision is limited to the case where a defender, whether a firm or an individual, carries on business and has a place of business in the county where he personally or as a partner conducts business. Moreover, the second portion of the clause seems specially to refer to cases very frequent in Glasgow and elsewhere, where the place of business is in Lanarkshire and the residence in Renfrew or a neighbouring suburb, which may be and often is in a neighbouring county. I think it has no application to a person residing abroad and merely having an interest in a farm in Scotland. I doubt whether farmers are included in the expression “persons carrying on a trade or business.” Farmers were not held to be traders under the old bankrupt law, and they were not subject to mercantile sequestration unless besides being farmers they carried on business as cattle dealers or lime burners or grain merchants. The alleged obligation contained in the lease binding the tenants to personal residence is of no consequence, as it is not pretended that this obligation has been implemented by the defender.

On the whole, therefore, I am of opinion that there are no grounds and no averments sufficient and relevant to found jurisdiction, and therefore the action has been rightly dismissed.

Lord Justice-Clerk—I quite concur, and think it unnecessary to make any further observations.