Scottish Court of Session Decisions

On November 17th, 1897, Messrs Davidson, Pirie, & Company, fishcurers, Leith, raised an action against Heinr. Herm. Dihle, herring merchant, Stettin, proceeding on arrestments used ad fundandam jurisdictionem. The action was one of damages for breach of contract to purchase a consignment of herrings. Defences were lodged, and after certain procedure the Lord Ordinary ( Low) pronounced an interlocutor repelling certain of the defender's pleas-in-law, and before further answer allowing the pursuers a proof of their averments of damage.

On 5th January 1899 the defender reclaimed, and the case was put out for hearing, but the pursuers received intimation that the defender had died on February 14th.

The pursuers presented a note to the Court, in which they made the following averments:—“The representatives of the said Heinr. Herm. Dihle have been requested to sist themselves as parties to the action, but they have not done so, and the pursuers are desirous that the cause should be transferred against the said representatives in order that the same may proceed. The pursuers have ascertained that letters of administration, or the equivalent thereof, were, of this date (April 4, 1899), taken out in the name of the following persons, being nephews and nieces of the deceased, viz.: Ewald Karl Max Freyer, criminal commissioner in Stettin; Max Wilhelm Bernhardt Freyer, veterinary surgeon in Grandenz; Klara Anna Amalie, widow of Farmer Paul Goetzoke, Waldows Hof, Stettin; Agnes Marie Fredericke, wife of Pastor Ludwig Fickert at Friebsess; Ernest Martin August Dihle, headmaster in Pasewalk; Helene Johanna Marie, wife of Siegfried Heinemann, merchant, Stettin; Sophie Fredericke Emilie Dihle, and Ernest Frederick Wilhelm Dihle, teacher, both residing in Berlin; and also in the names of Carl Zimmerman in Pasewalk, and L. Bergemann, cigar manufacturer, Stettin, as trustees of Karl Martin Dihle, Gustav Karl Wilhelm Dihle, Robert Heinrick Dihle, brothers of the deceased, and Auguste Wilhelmine, wife of August England, wheelwright, niece of the deceased, whose addresses are not known. Jurisdiction has been founded against the said representatives for the purpose of transference by arrestments ad fundandam jurisdictionem used of this

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date (August 3, 1899). In view of the said transference the pursuers hereby restrict the conclusions of the summons to a conclusion for decree cognitionis causa tantum.”

The pursuers craved the Court “to grant warrant for serving a copy of the summons and of this note upon the said representatives, and upon the said Pastor Ludwig Fickert and Siegfried Heinemann, as curators and administrators-in-law of their said wives and for their interest, and allow them to lodge objections thereto within eight days after service, and thereafter to dispose of any objections lodged, and to transfer the cause in common form against the said representatives in room and place of the deceased Heinr. Herm. Dihle, but that to the extent only of enabling the pursuers to obtain decree cognitionis causa tantum, all in terms of the statute.”

Objections were lodged by Mr Dihle's representatives, in which they stated that “One of the persons named in the note under answer as a representative, viz., Auguste Wilhelmina, wife of August England, predeceased the said Heinr. Herm. Dihle, and died on 13th March 1852, leaving issue who are not called as representatives, although they are within the class of legal representatives of the deceased. The note is directed against Carl Zimmermann and L Bergemann, as trustees for the said Auguste Wilhelmina, wife of August England, neither the said parties nor one or other of them is trustee for the deceased Auguste Wilhelmina England. The objectors are all foreigners, and have not made up any title by confirmation or otherwise to any estate belonging to the deceased situate in Scotland. No letters of administration, or the equivalent thereof, have been issued in favour of the persons here called as representatives. They are not subject to the jurisdiction of the Courts of Scotland.

The objectors submit that the proceedings for transference adopted against them by the pursuers are incompetent, and separatim, that (on the assumption that jurisdiction can be competently founded against the representatives of a deceased foreigner by the use of arrestments), in the circumstances, jurisdiction has not been validly constituted against them by the proceedings founded on in the note, and that the transference sought should be refused. They further submit that the transference should be refused on the ground of forum non conveniens. The objectors are all foreigners, the domicile of the deceased was at Stettin, and the realisation and distribution of his estates must proceed there.

Objection was also taken to the validity of the arrestment, but was not pressed in the argument submitted to the Court.

The certificate of heirs of Mr Dihle in the Court of Stettin was as follows—“ Stettin, 27 th November 1899.—From the undersigned Court of Justice it is certified that Heinrich Hermann Dihle, merchant, who died on the 8th day of February 1899 at Stettin, his last place of habitation, without leaving any will, leaves [Here follows a list of Mr Dihle's representatives, those who were called in the pursuers' note through trustees being described as “address unknown”] as sole lawful heirs.”

Argued for pursuers—The course taken by them was the competent and usual one before taking any steps after Dihle's death; they were bound to transfer the action, and the method adopted by them was the right one— Cameron v. Chapman, March 9, 1838, 16 S. 907; Houston v. Sterling, February 3, 1824, 2 S. 564; Ashton, Hodgson, & Company v. Mackrill, 1773, M. 4835; Forrest v. Forrest, May 26, 1863, 1 Macph. 806. It was unnecessary to show that the defenders had an active title to the property, since they admitted that they were among the legal representatives. The action being one cognitionis causa tantum, the fact that all of the representatives had not been accurately called was quite immaterial—Ersk. iv. 1, 60; Stair, iv. 34, 1.

In the course of the debate the pursuers obtained leave to amend their note and correct an error in the name of one of the representatives called through their trustees, by substituting for the words “Auguste Wilhelmine, wife of August England, wheelwright, niece of the deceased,” the words “August Wilhelm England, nephew of the deceased.”

Argued for objectors—(1) There was no authority for transferring an action against a living person into one of constitution against his foreign representatives, or using it as a means of getting at his estate in this country— Houston v. Stirling, supra; Forrest v. Forrest, May 26, 1863, 1 Macph. 806. (2) Even if the action could be transferred in this method the pursuers had failed to call all the representatives, having called the deceased Mrs England instead of her son August England, and it lay on them to show that they had exhausted the whole of the next-of-kin— Brown v. Rodger, December 13, 1884, 12 R. 340; Smith's Trustees v. Grant, June 27, 1862, 24 D. 1142, at 1172.