Scottish Court of Session Decisions

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Cite as: [1890] ScotLR 27_348_1, [1890] SLR 27_348_1

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SCOTTISH_SLR_Court_of_Session

Page: 348↓

Court of Session Inner House Second Division.

[Sheriff of Fife and Kinross.

Tuesday, February 18. 1890.

27 SLR 348_1

M'Leod

v.

Tancred, Arrol, & Company.

Subject_1Process
Subject_2Jurisdiction
Subject_3Proof,
Facts:

In an action of reparation raised in a Sheriff Court, the defenders pleaded “no jurisdiction.” The Sheriff-Substitute allowed the parties a proof of their averments, “reserving the question of jurisdiction to be tried along with the merits.” Upon the pursuer appealing for jury trial, the Court held that the procedure adopted was wrong, unless
Page: 349↓
in very exceptional circumstances, and remitted the case back to the Sheriff-Substitute to have the question of jurisdiction disposed of.

Headnote:

Thomas M'Leod, plater, Dunfermline, brought an action in the Sheriff Court there against Tancred, Arrol, & Company, Forth Bridge contractors, North Queens-ferry, to recover damages for injuries sustained while working in their employment on the said bridge, and alleged to be caused by their fault and negligence, or by the fault and negligence of those for whom they were responsible.

The first statement of facts for the defenders was as follows—“Section 46 of the Sheriff Courts (Scotland) Act 1876 enacts, inter alia, that ‘a person carrying on a trade or business and having a place of business within a county, shall be subject to the jurisdiction thereof in any action, notwithstanding that he has his domicile in another county, provided he shall be cited to appear in such action either personally or at his place of business.’ The defenders do not have their domicile either in the county of Fife or the county of Kinross, and have no place of business in either of these counties. Their place of business is in South Queensferry, in the county of Linlithgow.”

They pleaded, No jurisdiction.

The Sheriff-Substitute ( Gillespie) upon 14th January 1890 closed the record and allowed the parties a proof of their averments, “reserving the question of jurisdiction to be tried along with the merits.”

The pursuer appealed to the Second Division of the Court of Session for jury trial.

When the case was called the defenders again argued that they were not subject to the jurisdiction of the Sheriff of Fife and Kinross, that they had no place of business upon the north side of the Forth — only a pay-box—but that if that question could not be settled without proof, proof as to jurisdiction should have been taken before a proof on the merits was allowed.

The pursuers argued—That the accident had happened within the jurisdiction of the Sheriff of Fife, that the operations on the bridge in Fife made that a place of business within the county, and that the defenders had a pay-office on the north side of the Firth. If a proof were necessary, the Sheriff-Substitute had adopted a proper course and one calculated to save needless expense.

At advising—

Judgment:

Lord Justice-Clerk—The defender in this case took exception to the jurisdiction of the Sheriff, and the Sheriff left that question open to be tried along with the merits. The pursuer has appealed for jury trial, but the first matter to be decided by us is whether the interlocutor of the Sheriff allowing a proof but reserving the question of jurisdiction can stand. Lord Lee knows personally of a case in which both questions were tried together. I should be sorry to see such a course adopted in practice. I could understand a case now and again arising in which such a course might be pursued—for example, where a proof had to be taken abroad—but it would require very exceptional circumstances indeed to justify it.

I am of opinion that the Sheriff here had no right to refuse to deal with the question of jurisdiction, and that the case must go back to him to have that question disposed of.

Lord Rutherfurd Clark—I am of the same opinion. The question of jurisdiction must be disposed of ante omnia. I agree that that question cannot be disposed of without a proof, but I think the Sheriff was wrong in proposing to take the proof on that question along with the proof on the merits.

Lord Lee—I agree in thinking that the cases in which a proof upon the question of jurisdiction may be taken along with the proof on the merits must be very exceptional indeed. The only case I know of in which that course was pursued was an undefended case of divorce on the ground of desertion — Carswell v. Carswell, July 6, 1881, 8 R. 901. There the defender was abroad, and the Court thought the proof as to jurisdiction and the proof on the merits might be taken together, and remitted the case to me accordingly. I think the procedure was wrong, but the circumstances were very exceptional. There are no such exceptional circumstances here. The question of jurisdiction in this case arises under the 46th section of the Sheriff Courts Act of 1876. There is no jurisdiction unless the defenders have a place of business within the Sheriffdom. They say they have none, but that can only be determined after the proof, which should be taken before the case is tried on the merits. It seems to me a trivial matter whether this case is tried in Fife or in Linlithgowshire, but the defenders think it important. Accordingly the case must go back to the Sheriff that he may make the necessary inquiries.

Lord Young was absent.

The Court pronounced the following interlocutor:—

‘Recal the interlocutor of the Sheriff-Substitute of 14th January 1890, remit the cause to the Sheriff with instructions to allow the parties a proof on the question of jurisdiction, and thereafter to proceed as shall be just.” …

Counsel:

Counsel for the Pursuer— G. W. Burnet. Agent— James Russell, S.S.C.

Counsel for the Defenders— Comrie Thomson— Guy. Agents— Reid & Guild, W.S.
1890