Scottish Court of Session Decisions

Baron Theodore Gudin and Marie Isabelle Gudin were married at Boulogne-sur-Seine on 4th September 1882. It was provided by the contract of marriage, in conformity with the Code Civil of France, that each party should retain the distinct ownership of his or her real and personal property. Baron Gudin had a considerable amount of jewellery, furniture, and moveable effects, while the Baroness had considerable sums of money. Baron Gudin after his marriage became lessee under a lease for twenty-one years of a house in South Kensington, London. In consequence of disputes between the spouses as to the ownership of certain investments, Madame Gudin in September 1884 raised an action in the High Court of Justice, Chancery Division, under the Married Women's property act 1882, to have her title to certain investments and property, which she alleged to be investments of her money made in her husband's name for her behoof, declared.

The action was compromised in terms of an agreement dated 5th November 1884, by which it was, inter alia, provided that all the property which was the subject-matter of the action was to be the property of Madame Gudin. It was also provided by the agreement that an allowance of £300 per annum, secured by a trust-deed of a capital sum of £8000 in the hands of trustees, was to be secured to Baron Gudin. The Baron failed to appoint trustees, and two were accordingly nominated by Madame Gudin, and her nomination was confirmed by the Court of Chancery. Isidore Bourke and Alfred Kirby were the trustees thus appointed. The 12th head of this agreement was as follows—”By consent, an order of the said Court to be taken to the above effect, and a stay of proceedings in re Gudin to be taken on these terms.”

Part of the property assigned to Madame Gudin by this agreement consisted of certain bonds, obligations, and certificates, along with a sum of £2000. These documents, and that sum of money were deposited in the Bank of Scotland at their office in Glasgow by Baron Gudin between the months of April and August 1883. After executing the agreement Baron Gudin left England, and on 16th December 1884 Madame Gudin raised an action against him in the Court of Chancery to enforce specific performance of the agreement above mentioned. Judgment was pronounced in that action in the High Court of Justice on 14th March 1885, whereby the Court declared that the said agreement of 15th November 1884 ought to be specifically performed and carried into execution, and did order and adjudge the same accordingly. It was

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further ordered that Baron Gudin should execute and deliver to Madame Gudin such transfers, deeds, or other documents as might be necessary for vesting in her, for her separate use, all property not capable of delivery referred to in the said affidavits, and should deliver up to her, for her separate use, such of the property referred to in the said affidavits as might be capable of delivery, and all documents in his custody or power relating to any property by said judgment directed to be conveyed or delivered. This order was repeated on 2d June 1885, and the Baron Gudin having failed to implement the order, the Court on 24th July 1885 nominated the Chief Clerk to execute on behalf of Baron Gudin the necessary transfers, authorities, and documents. The Chief Clerk accordingly executed upon 1st August 1885 an indenture, whereby, on the narrative of the agreement of 5th November 1884, and the decrees of 14th March and 2d June 1885, he conveyed the bonds and obligations and deposit-receipts for the money in bank partly to trustees to secure the allowance of £300 per annum to Baron Gudin, as provided in said agreement, and partly to Madame Gudin, her executors, administrators, and assigns absolutely. He also settled and signed on 1st August 1885, in pursuance of the directions of Mr Justice Pearson, a document of request and authority to the Bank of Scotland, Glasgow, to deliver to the trustees mentioned in said indenture, and to Madame Gudin, the bonds and obligations, and to pay to the Baroness the sums in the said deposit-receipts.

In addition to the demand on behalf of Madame Gudin for the delivery of the said bonds and deposit-receipts, an intimation was made to the bank by Baron Gudin, by which he notified to the bank that he would hold them responsible if they gave up to his wife any of the moneys or securities deposited by him with them. He also intimated that he had instituted proceedings in the French Courts to nullify the proceedings taken against him in England.

In these circumstances the present action of multiplepoinding was raised in name of the Bank of Scotland, as pursuers and nominal raisers, to have the question determined as to which of the claimants was entitled to the documents and cash deposited with them by Baron Gudin. Baroness Gudin was the real raiser. The fund in medio consisted of various bonds of American, Canadian, and French railways, together with a sum of £2000 in deposit-receipt, which sum the defender and real raiser, Madame Gudin, alleged belonged to her although deposited in the said bank by the defender Baron Gudin in his own name.

Madame Gudin claimed to be ranked and preferred to the whole fund in medio except to certain American and Canadian railway bonds, which were claimed by Messrs Isidore Bourke and Alfred Kirby (the trustees nominated by her in terms of the agreement of November 1884), and to which bonds Madame Gudin made no claim.

Baron Gudin also lodged a claim. He averred that the bonds and obligations were lodged by him in the bank for safe custody, that they and the £2000 already referred to were investments of funds belonging to him, and declared by the said contract of marriage to be his

property. He also averred—“In consequence of proceedings taken by the real raiser in the English High Court of Justice to enforce a pretended agreement said to have been entered into between the claimant and real raiser in an action between the parties brought by the real raiser in the High Court of Justice in England—the said agreement purporting to deal with the right to the present fund in medio—the claimant has taken proceedings in the French Courts with a view to establish the nullity of the said pretended agreement, and all that has followed thereon in regard to the bonds, obligations, certificates, and sums of money forming the fund in medio, and to have his right to these bonds, &c., declared. The real raiser has appeared in the said action, and parties were heard upon the 14th January last. The ground of the said proceedings is that the English Courts had no jurisdiction to entertain the action between the parties, or pronounce the orders pronounced by them upon which the real raiser now founds, and that the parties by the law of France could not enter into any such agreement as the pretended agreement dated 5th November 1884, it being illegal for them to modify the provisions of the marriage-contract.” He claimed the whole fund in medio. He stated that the agreement of 5th November 1884 was extorted by threats, and that in any view the Court of Chancery had no jurisdiction over him.

The pursuers and nominal raisers and Madame Gudin, the real raiser, pleaded, inter alia, that“(3) The Court of Session is the forum conveniens for the determination of the questions raised, in respect that the fund in medio is situated in Scotland, and in respect of the agreement of 5th November 1884, and of the decrees and orders of the High Court of Justice in England, and the procedure following thereon.”

Baroness Gudin pleaded—“In respect of the agreement between the spouses above mentioned, and of the decrees of the High Court of Justice, conveyances and transfers in favour of the claimants following thereon, the claimants are entitled to be ranked and preferred in terms of their respective claims.”

Baron Gudin pleaded, inter alia,—“(1) In the circumstances set forth, the Court of Session is not a convenient forum for the determination of the questions raised between the parties. (7) The pretended decrees and orders of the High Court of Justice in England having been pronounced in the absence of the claimant by a Court not having jurisdiction, and proceeding upon a pretended agreement which is null, the rights of the claimant are not affected thereby.”

The Lord Ordinary, after having repelled the objections which were stated to the competency of the action, ranked and preferred the Baroness Gudin and the trustees under the deed of trust executed by her and them, and settled and approved by the Chancery Division of the High Court of Justice, in terms of her claim.

“ Opinion.—In this action of multiplepoinding the claim at the instance of the wife, Baroness Gudin, to be preferred to the money and securities deposited with the Bank of Scotland appears to me to be well founded, while the claim of the husband is, in my opinion, on the merits entirely untenable, and on the technical grounds urged legally unsound.

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I have already given judgment on the question of jurisdiction, and that point being settled, so far as I have power, I am now in a position to give immediate decree.

“It appears from the contract of marriage into which the parties entered (in the French form) that the wife, Baroness Gudin, was possessed of considerable personal property, while the husband is not stated to have been possessed of any income-producing property, his whole estate (consisting of furniture, jewels, and plate) being set down at the estimated value of 35,000 francs, or about £1400.

“The parties having come to reside in England, disputes arose as to the ownership of the investments of the property, and an action was raised in the High Court of Justice in England to determine these disputes.

“Instead of litigating these questions to the bitter end, the parties, acting under the advice of counsel, entered into an agreement defining their rights, as the result of which the action in the High Court was withdrawn. Under this agreement the subjects and securities constituting the fund in medio are declared to be the property of Baroness Gudin, subject to an annuity of £300 a year in favour of the Baron. This is not disputed by Baron Gudin, but he contends that the subjects are really his; that he was persuaded to enter into the agreement against his true interests, and that by the law of France he had no power thus to alienate his estate in favour of his wife.

“Baron Gudin having refused to perform his part of the agreement, an action was raised by Baroness Gudin in the High Court of Justice, Chancery Division; to enforce specific performance of the agreement. In this action a decree, dated 14th March 1885, was pronounced wherein it was declared that the agreement ought to be specifically performed and carried into execution. Baron Gudin having failed to execute the necessary transfer of the securities into his wife's name, the Chief Clerk, on the Judge's order, executed a judicial transfer thereof, which is recited in the condescendence. The Chief Clerk by the Judge's authority also executed a deed of request and authority to the Bank of Scotland to deliver to certain trustees, and to Baroness Gudin respectively, the documents of security there specified, and to pay to Baron Gudin the sums in the deposit-receipts which are part of the fund in medio. The judicial transfer and authority to pay here referred to constitute the title of the claimant Baroness Gudin and of the trustees who are joined with her in the claim, and if the title is good their claim must be sustained.

“I take for granted that deeds of judicial transfer, whether expressed in words of conveyance or in the form of a procuratory or authority to pay (the latter form being properly applicable to money in account), have the force of a decree of adjudication, although by English procedure they are signed by the Chief Clerk and not by the Judge. There is indeed little difference in this respect between an English and a Scottish adjudication of property—the actual decree in our practice being signed by the Extractor of Court although proceeding on an interlocutor or order signed by a Judge. The only question is whether we are to give effect to the decree, transfer, and authority.

“On this question I have very little to say, because it does not present any difficulty to my mind.

“It may be, and I think is, the law of Scotland that a decree or judgment of the Superior Courts of England is examinable when founded on for execution in this part of the United Kingdom. But it is to be executed, if after examination it is found to be regular.

“By examination I do not understand to be meant a re-trial of the cause on issues of fact or of law. It is not necessary, nor in my view would it be altogether convenient, to attempt to define the kinds of irregularities in decrees which would make it the duty of this Court to deny effect to them.

“Instances of such irregularities may occur, whether as to jurisdiction, form, or substance, and no doubt a Superior Court may be imposed upon, so as to be induced to issue a decree which, when the truth came to be known, neitheritnor any Court whose aid was sought would be willing to enforce. But nothing of the kind is suggested here. The case for the competing claimant is, that he was entitled to plead his own disability in the English High Court; and that not having done so, he should be allowed to do so here. Why did he not maintain the plea of disability in England? or if decree was given against him in absence, why did he not move to have the case opened up? No explanation is given on these points. The pursuer's case resolves into this, that he is to be allowed to re-try the case on its merits. On principle and authority I conclude that he is not entitled to this indulgence. I accordingly prefer Baroness Gudin and others in terms of their claim.”

Baron Gudin reclaimed, and argued—While not maintaining that the Court of Session had no jurisdiction, it was submitted that it was a forum, non conveniens, and that the question between the parties could be more satisfactorily determined by the French Courts— Stavert, February 3, 1882, 9 R. 519. The service here was defective, in so far as it was executed under an English Act of Parliament; it was not effectual against a French subject. In applying a foreign judgment the Courts of this country would consider whether it was pronounced according to the rules of international law. Baron Gudin was a foreigner, and not subject to the rules of the Court of Chancery. If any doubt was entertained as to his nationality this could be determined by a proof.

Authorities— Corbet v. Waddell, November 13, 1879, 7 R. 200; Storey's Conflict of Laws, sec. 546; Wharton's Conflict of Laws, sec. 199.

Replied for Madame Gudin—The claimant had already a decree of the Court of Chancery, and it fell on Baron Gudin to show that his wife had not an indefeasible title to this property. The objections taken by Baron Gudin might or might not be good, but he had delayed too long to plead them. Any objections to jurisdiction were completely removed by the Baron having prorogated it in both actions by defending, and by his being a consenter to the agreement of November 1884. As to whether the Court in this country would look into the merits of a decree pronounced by a competent Court in England or Ireland, the result of the authorities was that a case of extreme hardship must be made

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out to induce the Court to look behind the decree.

Authorities— Wilkie v. Cathcart, November 19, 1870, 9 Macph. 168; Gladstone v. Lindsay, November 5, 1868, 6 Scot. Law Rep. 71; Waygood v. Bennie, February 17, 1885, 12 R. 651; Whitehead v. Thomson, March 20, 1861, 23 D. 772; Murray, M. App. 5, forum competens.

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