Scottish Court of Session Decisions

In the other action, which has been conjoined with the first, the position seems to be this. The pursuers conclude for reduction of the discharge against the beneficiaries to whom the trust-estate was some years ago paid away. These beneficiaries are resident in England, and it is not suggested that the Scottish courts have jurisdiction over them upon any of the usual grounds upon which jurisdiction is based. But it is said that these defenders, having been called, have prorogated the jurisdiction of the Court, and the question I have to consider is, whether they are to be held as having done so. Now, the ground on which they are said to have done so is this—they lodged preliminary defences, and in these preliminary defences said nothing about jurisdiction, and then when the case came before the Court they consented to satisfy the production, and thereafter did satisfy the production. It is said that by thus satisfying the production without objection and without reservation, the defenders have submitted themselves to the jurisdiction of the Court—that is to say, have prorogated the jurisdiction, and cannot raise, as they now propose to do in the record which has been made up on the merits, the question of jurisdiction, which they did not raise in their preliminary defences.

Now, it may be that the defender to a process of reduction is not bound, as against satisfying the production, to state every defence which is capable of being stated to that effect. The Court of Session Act 1850 so directs; but it has been held that no sanction is attached to its provisions, and that the same are only directory— Mackintosh v. Arkley, 6 Macph. (H.L.) 141. It may therefore be that a defender can, if he chooses, postpone until he lodges his defences on the merits such pleas as incompetency or want of title. In other words, he is not held by satisfying the production to admit the competency of the action or the pursuer's title. But jurisdiction is, in my opinion, a different thing from competency or title, and it appears to me that a defender who, being called into Court in a reduction, appears, and takes an order to satisfy production, without protest or reservation, must be held at least to submit himself to the jurisdiction of the Court. I do not know how, if prorogation of jurisdiction is possible, it could be better evidenced than by production of the document called for, ‘to be seen and considered by our said Lords, and to hear and see the same, with all that has followed or may follow thereon, reduced,’ &c., &c., as set forth in the summons. I was referred to certain dicta in the case of Reoch v. Rob, 9 S. 588, which seem to indicate that in the opinion of eminent judges jurisdiction cannot be prorogated by a foreigner—the ratio apparently being, that there can be no jurisdiction where no means exist for making the decree of the court effectual. I do not, however, find that those dicta, which were not, I observe, necessary to the decision, have since been followed. Indeed, I rather think there must be some mistake in the report. In any case, they would not necessarily apply to the defenders resident in England, who are now under the Judgments Extension Act liable to diligence upon Scotch decrees or to actions like the present where no pecuniary decree is sought.

On the whole matter, and having considered the authorities cited, I am of opinion that jurisdiction could be prorogated by these defenders, and that there has been sufficient prorogation. I propose therefore in this case to repel the first plea-in-law and order a proof, and, on the whole, the result will be that there will be a proof before answer in the conjoined actions.”

The defenders reclaimed, and argued—(1) The Court had no jurisdiction against the beneficiaries, and such a plea could be stated as a preliminary defence, or as a defence to satisfying production, or at any time up to the closing of the record— Mackintosh v. Arkley, May 28, 1868, 6 Macph. (H.L.) 141; Watt v. Thomson, &c., May 24, 1870, 8 Macph. (H.L.)77. Even a plea repelled as against satisfying production might be reserved as a plea in the action— United College of St Andrews v. Blyth, March 19, 1864, 2 Macph. 810; Charles v. Charles' Trustees, May 19, 1868, 6 Macph. 772; Shaw v. Dow & Dobie, February 2, 1869, 7 Macph. 449. (2) There had been no prorogation of the jurisdiction merely by satisfying the production— Reoch v. Rob, May 14, 1831, 9 S. 588. (3) As regarded the trustee, the action was incompetent. He had been discharged, and constitution of the debt was unnecessary. The beneficiaries, if within jurisdiction, could have been sued directly.

Argued for the pursuers—(1) There had been prorogation of the jurisdiction—Ersk. Inst. i. 2, 27. If prorogation could ever be presumed from tacit consent, it must be here. In the preliminary defences no objection to the jurisdiction had been taken, and the defenders had asked to be allowed to satisfy production. By pleading and by satisfying production without protest, and by their whole conduct, they had submitted to the jurisdiction. Their plea of no jurisdiction was now too late. In Charles' case that plea was repelled once and for all; it was not reserved. Shaw's case was peculiar. The plea there was reserved, because the same set of facts would determine the jurisdiction and the merits of the case. (2) Decree of constitution was necessary. Decree was not asked against the trustee personally, but against him for any trust-funds that might still be in his possession. He could defend or not as he liked, but the action against him was clearly quite competent.

At advising—

Lord President—I entirely agree with the Lord Ordinary on both points. As regards the point first discussed to-day—the position of the beneficiaries—I think the case is conclusively made out against the

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