Scottish Court of Session Decisions

The International Exhibition Association of Electrical Engineering and Inventions 1890 was in December 1889 formed and registered under the Companies Acts 1862 to 1886. The objects of the association were, as declared by the memorandum of association thereof, inter alia, to open and carry on during the year 1890 an Exhibition in or near Edinburgh in the county of Mid-Lothian, and to construct, maintain, and alter any buildings or works necessary or convenient for the purposes of the association. By the articles of the said association it was provided, inter alia, as follows—“37. In the event of a loss or deficiency arising, the same shall be assessed upon the members who have subscribed to the guarantee fund, and upon the subscribers to the guarantee fund (if any) who shall not have become members of the association, in proportion to the amount of the respective subscriptions to the guarantee fund of such members and other subscribers to the guarantee fund; and when the guarantee fund has been exhausted, then upon the members in respect of their liability under clause 7 of the memorandum of association.”

Upon 31st October 1889 Samuel Lee Bapty, who had been appointed general manager of the Exhibition, and was then living in Edinburgh, wrote to Mr Watson, therein designed as the “secretary of the International Exhibition Association of Electrical Engineering and Inventions,” in these terms—“I agree to become a member of the International Exhibition Association of Electrical Engineering and Inventions, and authorise you to place my name on the list of subscribers to the guarantee fund thereof for the sum of £500, to which amount my liability is limited.”

Bapty, who was an Englishman, lived for about six months within the Exhibition buildings. The Exhibition was continued during the summer of 1890, and was closed upon 1st November of that year. At a general meeting of the association upon 5th November 1890 it was resolved that the association should be wound up voluntarily, and J. A. Robertson, C.A., was appointed liquidator. Thereafter, by interlocutor of the Second Division of the Court of 13th November 1890, the winding-up was directed to be continued under the supervision of the Court, and the appointment of the liquidator was confirmed.

Upon 8th November 1890 Bapty was about to leave Edinburgh on his way to England when he was arrested on a fugœ warrant obtained on petition of the Exhibition Association and the liquidator Mr Robertson, and having been taken before the Sheriff-Substitute he was liberated on a bond being granted by him and a cautioner, Alexander Mackenzie Ross. Ross judicially enacted, bound and obliged himself, his heirs, executors, and successors, as cautioner and surety, acted in the Sheriff Court books of Edinburghshire, for the said defender de judicio sisti in any action for payment of the debt of £500 to be brought against him at the pursuers' instance in any competent court within three months from the date of said bond; and further, he and the defender assigned the Sheriff-Clerk's office, Edinburgh, as a domicile at which any citation or intimation might be left in connection with the bond. Bapty left Scotland the same day.

On 21st November 1890 a summons concluding for the sum of £500 was served upon him, both at the Sheriff-Clerk's office and at the residence in the Exhibition he had occupied during its existence, at the instance of the Exhibition Association and the liquidator.

The defender averred—“The defender is domiciled in England. … The defender was upon 8th November 1890 illegally and unwarrantably apprehended as in meditatione fugœ, and without an opportunity of obtaining legal assistance he entered into the bond referred to. The said bond is null and void, as the said apprehension was illegal. The defender is presently in communication with the pursuers as to the effect of the warrant for his apprehension, and he is in course of taking proceedings to have the said warrant set aside as being illegal.”

He pleaded—“(1) No jurisdiction.”

Upon 7th February 1891 the Lord Ordinary repelled the defender's first plea-inlaw, and put the case to the roll for further procedure.

“ Opinion.—It is admitted that the defender, who is an Englishman, resided for six months or thereby within the Exhibition buildings in Edinburgh, that he left Edinburgh on 8th November 1890, and that the summons in the present action was served upon him at his residence in the Exhibition on the 21st day of the same month. In these circumstances he pleads no jurisdiction. I am of opinion that the plea is bad.

It was not disputed by the defender's counsel that residence in Scotland for forty

Page: 650↓

days is sufficient to found jurisdiction, but he contended vigorously that there is no warrant for holding that the jurisdiction so constituted endures for forty days after the actual termination of the residence. Mr Mackay in his book on Practice states the rule thus:—‘The Court has also jurisdiction over persons who have resided in Scotland for forty days prior to the action, or who, having resided during that period, have not since been absent for forty days.’ He cites as his authority for this statement the case of Calder v. Wood, 1798, M. 2250, which does not, according to the defender's counsel, bear out the latter part of the statement. What the case of Calder decided was that the Court had jurisdiction over a man who had resided for the requisite time in Glasgow, and on whom service had been made by leaving a citation at his lodging there two or three days after he had quitted it, and was on his way to England. This at all events recognises that the jurisdiction survives the actual termination of the residence. But the rule does not rest merely on the authority of Calder's case. I should be slow to believe that on an important point of practice the principal writers on the subject had concurred in mis-stating the law, for Mr Dove Wilson (Sheriff-Court Practice, pp. 72–3), and Professor Rankine (in his edition of Erskine's Principles, i. 2, 9), state the law exactly as Mr Mackay does. This rule is customary, and for customary rules it is sometimes difficult to cite decisions. There is, however, a very distinct recognition of it in the opinion of the Lord President (then L. J.-C.) in the case of Joel v. Gill, 21 D., at p. 939 of the report.

The Judicature Act (6 Geo. IV. c. 120, p. 53) provides that ‘Where a person not having a dwelling-house in Scotland occupied by his family or servants shall have left his usual place of residence, and have been therefrom absent during the space of forty days without having left notice where he is to be found within Scotland, he shall be held to be absent from Scotland, and be charged or cited according to the forms herein prescribed accordingly,’ i.e., by edictal citation. This provision does not directly enact how such a person is to be cited during the interval of forty days, but it very plainly implies that he is not to be held to have left Scotland till the end of that period, and consequently that citation at his former residence would be good. A direct enactment to that effect is to be found in the A.S., 14th December 1805 (quoted in Lord Ivory's note to Ersk. Inst. i. 2, 16). There is some doubt whether that Act did not expire with the statute to which it related, but Lord Ivory quotes (apparently with approval) Mr More's opinion to the effect that it might be considered as a declaration of the common law upon the subject. When read along with the Judicature Act it seems to put the matter on the intelligible footing that for a certain short time after the termination of actual residence of the required duration, a man shall be presumed to be still within Scotland, and if so, he is still in the eye of the law just as liable to the jurisdiction of the Scottish Court as when he was physically within the kingdom. It may be said that the rule is arbitrary, but so are all fixed periods and presumptions, and in such matters it is better that the law should be arbitrary than that it should be uncertain. At all events, I think the rule is well established by custom.”

Upon 19th March 1891 the Lord Ordinary repelled the remaining pleas-in-law for the defender, and decerned against him conform to the conclusions of the summons.

The defender appealed, and argued—(1) There was no jurisdiction. It was admitted that Bapty had come under the jurisdiction of the Scottish Courts by his residence in the house provided for him in the Exhibition buildings for forty days, and if a summons had been served upon him after that date while he was still in Scotland he could not have disputed the jurisdiction. But that jurisdiction lasted only as long as Bapty remained in Scotland, and fell whenever he crossed the border. Now, the Exhibition closed on 1st November, Bapty left Scotland on the 8th, and the summons was not served till the 21st at the earliest. The citation was quite good, but it had no effect upon a person over whom the Scottish Courts had no jurisdiction— Johnston v. Strachan, March 19, 1861, 23 D. 758 (Lord Kinloch's opinion). The case of Calder v. Wood to which the Lord Ordinary referred, and which was taken as the basis of Mr Mackay's statement of the law did not bear out that statement, as could be seen from the much fuller report of the case Calder v. Wood, January 19, 1798, F.C. As was shown in that report, the summons was either served upon the defender or was known to him while he was still in Scotland; that was not the case here. The only other case which the Lord Ordinary referred to was a dictum by the Lord President in Joel v. Gill, June 10, 1859, 21 D. 929. In that case the Lord President was considering the case of a person over whom the Scottish Court had jurisdiction, while here there was no such case. The Act of Sederunt referred to could not extend the jurisdiction of the Court if it did not otherwise exist— Brown v. Blaikie, February 1, 1849, 11 D. 474. On the question of the agreement, the citation at the Sheriff Clerk's office must be held to be bad because it was when arrested under a fugœ warrant that the defender had agreed to it. That arrestment was illegal as had been decided a short time ago— Hart v. Anderson's Trustees, November 28, 1890, 18 R. 169. The defender was endeavouring to get the proceedings quashed as illegal, and it could not be said that if this arrestment was illegal any agreement made under that pressure could be legal.

Counsel for the respondent were not called on.

At advising—