Scottish Court of Session Decisions

By the Act 1540, cap. 75, it was provided that the officer must go to the “principal dwelling-place” where the person to be summoned “dwells, and has their actual residence for the time,” and if he cannot find him personally he is to show his precept to a servant and leave a copy with the servant. Failing his getting entrance, the officer is to fix a copy at the door, which is to be “sufficient summoning and delivering of the copy.”

By A.S. 14th December 1805 it is provided “that where any person against whom legal diligence is meant to be executed, or who is to be cited as a party in any judicial proceeding, has left the ordinary place of his residence, which may render it doubtful whether he is within the kingdom of Scotland or not, and consequently whether the citation against him ought to be executed at his dwelling-house or at the market cross of Edinburgh and pier and shore of Leith, when he is not

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personally found, it shall in time coming be held and presumed that the said person after forty days' absence from his usual place of absence, but not sooner, is furth of the kingdom of Scotland, and therefore that within the said forty days the citation or charge may beat his late dwelling-house, but after that period must be at the market cross of Edinburgh and pier and shore of Leith, unless he be personally found, or prior to the execution shall have taken up some other known and fixed residence within Scotland.”

This Act of Sederunt was passed with relation to the Bankruptcy Act of 1793 (33 Geo. III. cap. 71), which expired in 1814.

Section 53 of the Judicature Act (6 Geo. IV. cap. 120) 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 absent therefrom during the space of forty days without having left notice where he is to be found in Scotland, he shall be held to be absent from Scotland, and be charged or cited according to the forms herein prescribed,” i.e., by edictal citation.

Section 21 of the Court of Session Act 1868 (31 and 32 Vict. cap. 100) provides that “No party appearing in any action or proceeding in the Court of Session shall be entitled to state any objection to the regularity of the execution or service as against himself of the summons or other pleading or writ whereby he is concerned.”

An action of damages for alleged breach of contract was raised on 23rd October 1897 by Mr John Edward Corstorphine, Edinburgh, against Mr John Ben Kasten, described in the summons as “residing at No. 14 Claremont Terrace, Edinburgh.” The defender was a foreigner, not residing in Scotland, who came to Edinburgh to conduct experiments in connection with the contract in question, and resided at the above address from the beginning of July to 2nd October 1897, when he went to Berlin, and did not return to Scotland. The defender was cited by service executed on 5th November at 14 Claremont Terrace, the summons containing a warrant for seven days' induciæ, and was not cited edictally. Jurisdiction was founded against him by arrestment ad fundandam jurisdictionem.

The pursuer maintained that the defender had a domicile of citation at 14 Claremont Terrace, where he had been cited within forty days of leaving Scotland.

The defender averred that at the date of citation he had left that address without any intention of returning, and that it was not his domicile.

He pleaded—“(1) No citation. (2) No jurisdiction.”

On 16th October an action arising out of the same transaction was raised against Mr Kasten by Mr Matthew, Edinburgh. The defender was cited in the same way as in the other action, and advanced the same pleas in defence.

The Lord Ordinary ( Kincairney) on 8th June 1898 repelled the defender's first and second pleas in the action at the instance of Mr Corstorphine and allowed a proof.

Opinion.—“In this case the defender pleads—‘(1) No citation, and (2) no jurisdiction.’ I assume that he is not a Scotchman, although he does not say what his nationality is. The defender was cited at 14 Claremont Terrace, Edinburgh, on seven days' induciæ. His objection is that he should have been cited edictally on fourteen days' induciæ. The pursuer maintains that this objection is met by the 21st section of the Court of Session Act (31 and 32 Vict. c. 100), which provides that ‘no party appearing in any action or proceeding in the Court of Session shall be entitled to state any objection to the regularity of the execution or service as against himself of the summons or other pleading or writ whereby he is convened.’ I have been informed that there are no reported decisions about this section. But if the defender be right in saying that he ought to have been cited edictally, then I doubt whether the substitution for an edictal service of a service not edictal can be said to be merely an irregularity in the service. There was nothing irregular in the service considered as a non-edictal service. I am not prepared to decide that the defender cannot state this objection. But I am of opinion that the objection is bad, and that the citation was right, and that it should not have been edictal. The pursuer avers that the defender resided at 14 Claremont Terrace from the beginning of July until 2nd October—that is, about ninety days—and that averment is not denied. The execution annexed to the summons shows that it was served at 14 Claremont Terrace on 5th November—that is, within forty days of the day on which the defender left it. The pursuer's proposition is that when a man resides continuously in Scotland for forty days he may be cited at his place of residence, not only when he is still there, but for forty days after he has left it. I am of opinion that that proposition is sound, and that it is a just inference from the 53rd section of the Act 6 Geo. IV. c. 120. I was referred to the opinion of Lord Stormonth Darling in the case of Bapty, May 20, 1891, 18 R. 843, which is to that effect, and in which I concur. His Lordship's judgment was taken to review, and was affirmed, although on a different ground. But no dissent from his views was indicated. I have carefully considered his opinion and the authorities to which he refers, and I need say no more than that I adopt it. I therefore repel the plea of ‘no citation.’ The plea of ‘no jurisdiction’ is met by arrestments jurisdictionis fundandæ causa, against which nothing is alleged, and that plea must also be repelled. The result is that the action must be entertained, and I suppose that there must be inquiry.”

On 28th June his Lordship similarly repelled the defender's first two pleas in the action at the instance of Mr Matthew.

The defender reclaimed against both interlocutors. In the course of the debate upon the reclaiming-note he added the following plea—“The defender being a foreigner,

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and furth of Scotland in the sense of sec. 14 of the Court of Session Act of 1868, the summons is incompetent, in respect it contains no warrant for an induciæ of fourteen days, and should be dismissed.”

Argued for reclaimer—1. He ought to have been cited edictally upon a fourteen days' induciæ, and it was not competent to cite him at a dwelling-house, which it was well known he had left. There was no ground for the contention that a domicile of citation endured for 40 days. The Act of 1540 had introduced citation at the dwelling-house where the person cited had his actual residence at the time.” That Act had not been extended by the decisions to embrace such a case as the present. Then the Act of Sederunt of 1805 was not, as the respondent maintained, an exposition of the common law, but referred merely to the Bankruptcy Statute of 1703, and did not extend beyond the limits of that Act, and expired with it. There was no foundation for the respondent's contention, for there was no such custom existing as he alleged was declared by it, and it would have tended to repeal the Act of 1540, which there was a presumption would not be done by an Act of Sederunt, and finally the words used, “shall be in time coming,” were not appropriate as a declaration of the common law. Then section 53 of the Judicature Act clearly did not contemplate the case of foreigners who had only come to Scotland for a limited period, and then had left without intending to return. It applied only to bona fide Scotchmen going away for a time and leaving their “ordinary place of residence,” not to a foreigner whose ordinary place of residence was elsewhere. Moreover, while it stated what was to be done at the end of the forty days, it did not prescribe what was to be done during these forty days—Shand's Practice i. 238; Broun v. Blaikie, Feb. 1, 1849, 11 D. 474. The authorities quoted to the opposite effect consisted only of recent writers, whose views were not supported by the cases. The statement of Lord Stormonth Darling in International Exhibition v. Bapty, May 26, 1891, 18 R. 843, that jurisdiction founded by forty days' residence in Scotland lasted for forty days after the termination of such residence, was founded only upon an utterance of the Lord Justice-Clerk in Joel v. Gill, June 16, 1859, 21 D. 929, at p. 939, which was obiter, and could not be held to establish the doctrine— Johnston v. Strachan, March 19, 1861, 23 D. 758. 2. Sec. 21 of the Court of Session Act only referred to technical irregularities of execution. Here there had not been such irregularity, but nullity, since there had been a breach of a statutory provision. A line had been drawn between the two classes— Watt v. M'Intosh, Feb. 10, 1827, 5 S. 334; Miller, Dec. 2,1853, 16 D. 109; Stephenson v. Dunlop, July 9, 1840, 2 D. 1366. The section clearly did not apply to the new point raised under sec. 14 of the Act, viz., to the fact that the summons had not contained a warrant for an induciæ of fourteen days but only for seven. It assumed the summons to be unimpeachable, and merely covered the question whether it was properly served.

Argued for respondent—1. Citation was a matter of practice, being regulated by it as well as by Act of Sederunt and statute, and there was a presumption that the form of citation created by the Act of 1540 was extended in any direction sanctioned by usage. The case of Calder v. Wood, Jan. 19, 1798 (F.C.), showed that a person might be held to be constructively in Scotland for forty days after leaving it, and that accordingly the form of citation used here was the right one within those forty days. That practice was formally declared as the common law by the Act of Sederunt of 1805. It was not confined to the operation of the Bankruptcy Act of 1793, and did not expire with it, but was a general provision, and was intended by the Court to avoid the difficult question which might arise as to whether a man had really left the country—Ersk. i. 2, sec. 16, note. The Judicature Act in a shorter form, but in the same substance, re-enacted the Act of Sederunt, plainly implying that a person was not to be held to have left Scotland within the forty days. On the authorities two views might be held, that jurisdiction endured for forty days after a foreigner left the country — International Exhibition v. Bapty—or alternatively that citation at the last dwelling-house was still good for that period— Johnston v. Strachan, ante; Joel v. Gill, ante. The latter view was sufficient for the respondents, and was the one preferred by them since jurisdiction had been constituted by arrestment. 2. Sec. 21 of the Court of Session Act had not hitherto been construed by the Court, because in point of practice it had been construed as meeting every possible mistake in citation. It was intended to put the pursuer in the same position as if the defender had accepted service if the latter saw fit to appear. It was not competent to draw the line between slight and important irregularities.

At advising—