Scottish Court of Session Decisions

A B, a widow, raised an action against C D to have it declared that they were lawfully married to each other in Scotland on or about 24th January 1888, or alternatively for damages for seduction.

The pursuer averred that on the morning of Tuesday 24th January a written declaration of marriage de præsenti was drawn out and subscribed by her and the defender before two witnesses, and that in consequence of such declaration of marriage the pursuer permitted the defender to have intercourse with her, which she would not have permitted had she not considered herself legally married to him.

Service of the summons was accepted by the agents of the defender in Scotland, but under reservation of all pleas competent to him, and defences were lodged for him.

In the defences it was averred that the defender, who was born in England, never acquired a domicile in Scotland, and was not subject to the jurisdiction of the Scottish courts.

The defender pleaded—No jurisdiction.

Argued for the pursuer—(1) The contract had been entered into in Scotland, and the matrimonial domicile of the spouses was there. Residence in Scotland for forty days was sufficient to found jurisdiction in actions of declarator of marriage. It was only in actions of divorce that the plea of no jurisdiction had been sustained—Fraser on Husband and Wife, ii. 1275. (2) But here there had been acceptance of service, which was equivalent to personal citation in Scotland. Whatever pleas were reserved, the acceptance of service barred the defender founding upon want of citation, and pleading no jurisdiction—Campbell's Law of Citation—pp. 66, 67.

Argued for the defender—(1) Where an action of declarator of marriage was raised against a foreigner there must be personal citation upon the defender in Scotland—Fraser on Husband and Wife, ii. 1272 (note a); Wylie v. Laye, July 11, 1834, 9 F.C. 495, and 12 S. 927. (2) There had been nothing here equivalent to personal citation, and all pleas, including that of no jurisdiction, had been reserved in the acceptance of service.

The Lord Ordinary on 6th June pronounced the following interlocutor:—“Having heard counsel on the closed record on the procedure roll, sustains the first plea-in-law stated for the defender of no jurisdiction: Dismisses the action, and decerns: Finds the defender entitled to expenses,” &c.