Scottish Court of Session Decisions

William Halliday and his sister Mary Halliday died domiciled in the county of Dumfries. Mary Halliday's executor raised an action in the Sheriff Court of Dumfries for the sum of £200 against the executors of William Halliday. The pursuer averred that for a number of years previous “to his death the said William Halliday had been accustomed at his sister's request to uplift periodically the interest upon a deposit-receipt in name of the deceased Mary Halliday for £200 sterling at the British Linen Company Bank, Sanquhar, and he paid the interest to her for her own behoof. On 8th Jannary 1885 the said William Halliday uplifted the interest on said deposit and re-deposited the principal sum of £200 in his own name, along with a sum of £586 which had been previously in deposit in his own name.” It was to recover this sum of £200, with interest from 8th January 1885, that this action was raised. The defenders, the two executors-dative qua next-of-kin of William Halliday, had taken out confirmation in the Sheriff Court of Dumfries. One of them lived in Ayrshire and the other in Glasgow, and they had transferred to the British Linen Company Bank in Glasgow all the funds which stood at the late William Halliday's credit in the branch of that bank in Sanquhar, and which formed the bulk of the executry estate.

The defenders denied the pursuer's averments, and pleaded, inter alia—“(1) The defenders not being subject to or under the jurisdiction of this Sheriff Court, the action falls to be dismissed with costs.”

The Sheriff-Substitute ( Hope) repelled these pleas and allowed a proof.

“ Note.—… The executors have, I consider, subjected themselves to the jurisdiction of this Court in matters pertaining to the executry estate. They have applied for and received from this Court the office they hold, and they have obtained confirmation, and have recorded in the books of the Sheriffdom an inventory of the estate. I do not see to what tribunal they are more made amenable.

“Mr [Dove] Wilson, after noticing the case of Black v. Duncan [December 18, 1827, 6 S. 261], remarks—‘In the same way it is thought that executors would be liable to the jurisdiction of Sheriffdom where the deceased lived, where the executors were confirmed, and where the estate was being wound up, though the majority of them should be actually resident without the Sheriffdom.’

“I go further than this, and would say, ‘though they be all resident without the Sheriffdom.’

“I think that support for this view can be obtained by a consideration of the terms of the bond of caution which cautioners for executors have to sign, and which must have been signed by the cautioners for the defenders. The form, after stating that the cautioner binds and obliges himself that the sum contained in the testament ‘shall be made free and furthcoming to all parties having interest therein as law will,’ contains the following clause—‘and I subject myself, my heirs and successors, to the jurisdiction of the Sheriff of Dumfries and Galloway in this particular.’

“I never heard of a cautioner being subjected to greater liability than the principal, and if an executor is not subject to the jurisdiction of the Court which appointed him, I cannot see why his cautioner should be required to subject himself to it.”

On 21st October 1886 the Sheriff ( Macpherson), on appeal, adhered.

“ Note.—The defenders live in different counties, neither of them in Dumfriesshire. The jurisdiction of this Sheriffdom is that to which the late William Halliday was subject when he died—he was domiciled and he left his property

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in it, and in it the defenders took out confirmation. It is forum conveniens, and were there any competent objection it should have been waived and the jurisdiction prorogated. But I concur in holding that there is jurisdiction over the defenders in a question affecting the amount of the deceased's estate. I think, further, that by taking out confirmation the jurisdiction has been by implication prorogated. The defenders have had recourse to this jurisdiction, and must answer in it.” …

The defenders appealed to the Court of Session, and argued—The first plea-in-law for the defenders was well-founded. The Court of Session was the only competent tribunal where both executors and almost the entire estate were without the Sheriffdom. The mere fact of confirmation could not give the Sheriff jurisdiction in such a case— Watt v. Richmond's Executors ( per Lord Fraser, when Sheriff of Renfrewshire), reported in Guthrie's Sheriff Court Cases, 241. The furthest point to which the Court of Session had extended its jurisdiction over an executor residing in a foreign country appeared from M'Morran v. Cowie, January 16, 1845, 7 D. 270, 17 Scot. Jur. 135, and Ferguson v. Douglas, Heron, & Company, 3 Pat. Ap. 503 ( per Lord Loughborough), p. 510; Black v. Duncan, December 18, 1827, 6 S. 261; Magistrates of Wick v. Forbes, December 11, 1849, 12 D. 299, 22 Scot. Jur. 71. [The Lord President—“Is the Sheriff's position not supported by the case of Preston v. Melville, March 29, 1841, 2 Rob. App. 88, 8 CI. & F. 1 ( per Lord Chancellor Cottenham), p. 12?”] That view of the decision in the case of Preston had been doubted in the House of Lords in Orr Ewing's Trustees v. Orr Ewing, July 24, 1885, 13 R. (H. of L.) 1. The view of the Sheriff here was just the contention of the pursuers in Orr Ewing v. Orr Ewing's Trustees, February 29, 1884, 11 R. 600, which was negatived on appeal. Even in an action on a contract the locus solutionis of which was within the Sheriffdom, a foreigner must be cited personally before the Sheriff had jurisdiction over him— Pirie v. Warden, February 20, 1867, 5 Macph. 497. The form of the bond of caution had nothing to do with the question. The liability of a cautioner was no higher than that of his principal, and if the latter was not subject to the Sheriff's jurisdiction neither would the former be liable in spite of the clause in the bond.

No appearance was made for the respondent.

At advising—