Scottish Court of Session Decisions

This was an action at the instance of John Hay Thorburn, Leith, against Alexander Dempster, Eaton Hall, Penmaenmawr, North Wales, against whom arrestments were said to have been used to found jurisdiction, in which the pursuer concluded for decree ordaining the defender to implement a contract for the sale of a distillery in Aberdeenshire.

The pursuer averred that on 18th May 1898 he entered into a minute of sale with the defender, whereby the pursuer agreed to purchase the distillery in question from the defender, and to fulfil various other stipulations relative to the sale, which were specified in the minute of agreement. The minute of sale upon which the pursuer founded was produced. It was a probative deed executed in the Scots style, and according to the solemnities of the law of Scotland.

In defence to this action the defender lodged defences, which are here given in full, and which ran as follows:—

“Answers to pursuer's condescendence— Ans. 1 to 8. With reference to the alleged contract of sale, the defender declines to make any admission until it is shown that he is subject to the jurisdiction of the Scotch courts.

Statement of facts for defender—Explained that the defender is not subject to the jurisdiction of the Scottish courts, as he is a domiciled Englishman and does not possess property, either heritable or moveable, in Scotland. In order to found jurisdiction against defender the pursuer arrested in the hands of Harvey's Yoker Distillery Company, Limited, having their registered office at No. 43 Renfield Street, Glasgow, the sum of £30,000 sterling more or less, alleged to be due and addebted by the said arrestees to defender. The defender neither possesses any shares in the said Harvey's Yoker Distillery Company, Limited, nor are the said arrestees debtors of defender.

Plea-in-law for defender—No jurisdiction.”

The Court of Session Act 1850 (13 and 14 Vict. c. 36), sec. 1, enacts as follows:— …”The allegations in fact which form the grounds of action shall be set forth in an articulate condescendence, together with a note of the pursuer's pleas-in-law, which condescendence and pleas-in-law shall be annexed to such summons, and shall be held to

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constitute part thereof; and the defences to such summons shall be in the form of articulate answers to such condescendence, and where necessary appended thereto a statement of the allegations in fact on which the defender founds in defence, and also a note of the defender's pleas-in-law.”

By Act of Sederunt 7th February 1810 the Lords enacted and declared “That where a fact is averred by one party, and not explicitly denied by the other party, he shall be held as confessed in terms of the Act of Sederunt One thousand seven hundred and fifteen, section 6, and the fact as definitely proved against him.”

The Act of Sederunt 1st February 1715 enacts as follows:—“Section 6 … Any party against whom any matter of fact shall be alledged which might be admitted to probation, the said party or his advocate shall be obliged to confess or deny that fact before pronouncing of the interlocutor, which confession or denial respectively shall be expressly marked in the minutes, and if he do refuse to confess or deny, his refusing shall in like manner be marked in the minutes, whereupon he shall be held as confessed.” …

On 13th July 1899 the Lord Ordinary ( Low) pronounced the following interlocutor:—“Repels the defender's plea-in-law; and in respect that the defender's counsel has this day at the bar intimated that he did not propose to amend the record to the effect of stating a case upon the merits—in the first place, finds, declares, and decerns in terms of the conclusions for declarator and implement; in the second place, finds, decerns, and ordains in terms of the first, second, third, and fourth heads of the second conclusions of the summons: Quoad ultra continues the cause: Finds the pursuer entitled to expenses,”&c.

Opinion.—[ After stating the nature of the case]—“The only plea stated by the defender is ‘No jurisdiction.’

I am of opinion that if an Englishman has concluded a formal and effectual contract for the purchase of heritage in Scotland, that is sufficient to give the Scottish courts jurisdiction.

The precise question has never, so far as I am aware, been settled by decision, but it is well established that a complete feudal title to land is not required. Thus a personal right under a disposition, a mere title of apparency without any possession, a beneficial interest in lands held in trust, and a lease of heritable subjects, have been held sufficient to give jurisdiction. That being so, I see no reason why, if an Englishman has actually bought an estate in Scotland, there should not be jurisdiction although he has not yet obtained the feudal title which it is in his right to demand.

The defender argued that in this case there could not be jurisdiction in respect of the contract, seeing that the de quo queritur was whether there was or was not a binding contract. But I am not aware that there is any dispute in regard to the contract. It is true that the defender does not admit the contract, but he does not deny it, and the pursuer has produced a probative deed which is sufficient to establish his case unless the deed is set aside, or circumstances are averred and proved which entitle the defender to refuse to implement the contract.

If the defender had stated a relevant defence upon the merits I should have allowed a proof, and in that case it would have been immaterial whether the plea of no jurisdiction was repelled or not, because the facts upon the question of jurisdiction and upon the merits are necessarily the same.

But as the pleadings stand there are no disputed facts in regard to which a proof could be allowed.

The plea is stated and was argued as a strictly preliminary plea, which falls to be given effect to at once, and which excludes all inquiry. In that sense I think that the plea is bad, and must be repelled. If, however, the plea is repelled, nothing remains, because the defender has stated no defence upon the merits. Therefore unless he moves for leave to amend his pleadings I must give decree.”

The defender reclaimed, and argued—The defender was not bound to state his defence upon the merits until it had been determined that he was subject to the jurisdiction of the Court. [ Lord Young referred to the Court of Session Act 1850, sec. 1, and to the Acts of Sederunt, 7th February 1810, and 1st February 1715, sec. 6]. The defender's failure to admit or deny the pursuer's allegations on the merits could not have any further effect than to put him in the same position as if he had admitted them. Assuming all the pursuer's averments on the merits to be true, it was submitted that the Court had no jurisdiction here. A foreigner was not subject to the jurisdiction of the Court because he had become a party to a contract relating to heritage in Scotland. The Lord Ordinary's interlocutor was therefore unfounded. Before any other question could be considered there must be a proof as to the validity of the arrestments used to found jurisdiction.