Scottish Court of Session Decisions

Jeannie Buchan, residing at the Bungalow, Milltimber, Aberdeenshire, on 28th

December 1904 brought an action against George Frederick Grimaldi, carrying on business as a meat salesman, Central Markets, London, and described in the summons as residing at No. 74 Hamilton Place, Aberdeen, in which she sued him for £1000 damages for seduction.

The defender pleaded, inter alia—“(1) No jurisdiction.”

The averments of parties on record bearing on the question of jurisdiction were the following:—“(Cond. 1) The defender … carries on an extensive business in London and Aberdeen as a meat salesman. At the date of this action he had his residence at 74 Hamilton Place, Aberdeen, where he had resided at least a year previous. The defender has funds and effects in Scotland which have been arrested.” “(Ans. 1) … Admitted that the defender … carries on business in London. Quoad ultra denied. He does not reside in Aberdeen or elsewhere in Scotland, and has not done so since 1st October 1904. He is a domiciled Englishman.”

The Lord Ordinary ( Dundas) allowed a proof on the question of jurisdiction. The general character of the evidence appears from his opinion as given below.

Apart from those which bore on the question whether the defender, who was English by origin, had acquired a Scotch domicile (a point which ultimately did not bulk largely in the case), the important facts proved were (1) that the defender left Scotland a fortnight prior to the serving of the summons, having at the date of leaving been resident continuously in Scotland for upwards of forty days, and (2) that he had been possessed of heritable property in Scotland which he disponed to a Mrs Mitchell, a married daughter, on 16th December, a few days before the action was raised, in the knowledge that the fact of possessing heritable property in Scotland subjected a foreigner to the jurisdiction of the Scotch courts.

On 23rd March 1905 the Lord Ordinary pronounced the following interlocutor:—“Finds (1) that the defender's domicile of origin was in England, and that he had never changed that domicile or acquired a domicile in Scotland; and (2) that on 30th December 1904, when the summons in this action was served, the defender was not the owner of heritable property in Scotland: Therefore sustains the first plea-inlaw for the defender, dismisses the action, and decerns,” &c.

Opinion.—“In this action, which is one of damages for alleged seduction, the defender's first plea-in-law is ‘no jurisdiction.’ The averments of parties in regard to this plea are of the most meagre description, and are to be found at the end of answer 1 and condescendence 1 respectively. I allowed a proof of them, which has now been led at considerable length. The defender avers that ‘he is a domiciled Englishman.’ His case, as disclosed by the proof, is that his domicile of origin was in England, and that he has never abandoned that domicile or acquired any other. There is, I think, no room for doubt that the

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defender's original domicile, and that of his father and grandfather before him, was in England, and its alleged abandonment by him and the acquisition of a domicile of choice in Scotland are only within quite recent years. It is, I apprehend, well settled that a very heavy burden lies upon anyone who seeks to prove that another has thrown off his domicile of origin and has acquired a domicile of choice elsewhere. The gravity of that onus and the character of the evidence requisite to discharge it, are fully dealt with in the well-known case of Steel v. Steel, 15 R. 896. It is true that the burden may not be so great where it is sought to establish that an Englishman has acquired a Scots domicile, or vice versa, as where the proposition is that an Englishman or a Scotsman has acquired a domicile in a purely foreign country— Vincent v. Earl of Buchan, 16 R. 637. But even under such circumstances a heavy onus lies upon the pursuer in the issue, and in the present case I am of opinion that the pursuer has failed to prove that the defender threw off his English domicile of origin and acquired a domicile of choice in Scotland.… [His Lordship reviewed the evidence].…

“The theory of the pursuer's case is that the defender's actings and utterances, since the time when he came to Aberdeen after his sojourn in America, establish an intention and determination on his part to divest himself of his English domicile and to take up his permanent residence in Aberdeen as his home. So far as the matter rests upon his actings in the way of residence, there is a good deal of vagueness in the evidence as to dates and periods, but I think that the general result is that which I have already described. When one comes to consider other alleged actings by the defender, and his utterances as bearing upon the question of his domicile, the counter evidence is given exclusively by three Aberdeen solicitors, who at one time or another acted as his agent, and the termination of whose agency seems, in the case of two of them at least, to have been attended with more or less friction between the agent and the client. [His Lordship reviewed this evidence.] Upon the whole matter, therefore, my opinion is that the evidence adduced by the pursuer is inadequate in character and quality to prove that the defender's original domicile was ever abandoned or lost by him.

“Holding as I do this opinion, it is unnecessary for me to decide or even to discuss the question whether or not, assuming that the defender did acquire a Scottish domicile of choice, his original domicile revived upon his departure from Scotland in December 1904, before the raising of the action—2 Fraser on Husband and Wife, 1270; Udny v. Udny, 7 Macph. (H.L.) 89.

“But an entirely separate and distinct answer is pressed by the pursuer to the defender's plea of ‘no jurisdiction,’ and must now be considered. It is not distinctly stated on record, but it is based upon his alleged ownership of heritable property in Scotland, viz., 74 Hamilton

Place, Aberdeen, as at the date of service of the summons. This argument has, of course, nothing to do with the aspect of the case previously considered, and would, if well founded, subject the defender to the jurisdiction of this Court, even upon the assumption that he was and is a domiciled Englishman. But, prima facie at least, the pursuer's case fails upon the facts. The summons was served on 30th December 1904, at the house in Hamilton Place, which was then uninhabited. The house itself had been conveyed by the defender to Mrs Mitchell by absolute disposition, dated 16th and recorded 20th December. The present case is therefore even a stronger one for the defender than that of Bowman v. Wright, 4 R. 322. Nor do I think that the defender's position would be in any way weakened or altered if it were clear that the disposition, assuming it to be an absolute one, and with no back letter—and there is no evidence of any such document—was made with the intention and for the purpose of escaping the jurisdiction of the Scottish courts. The defender admits that he had been told of and had in view the law of the matter, and depones that under the circumstances he thought the occasion a good one for carrying out his original intention, to which I referred at an earlier portion of my opinion, of gifting the house to his daughter. And the conveyance being duly made before service of the summons, the matter would, in my judgment, there take an end, except for a disagreeable topic which is introduced into the evidence, and which, the pursuer urges, is sufficient to bar the defender from founding upon the disposition as excluding jurisdiction.

“The evidence upon this matter stands as follows. It is proved that on 14th December 1904 the defender had an interview in Edinburgh with Mr Robert Stewart, S.S.C., at which Mr Stewart was instructed to prepare the disposition, which he did, and the disposition was signed on the 16th and recorded on the 20th. Now, on the same day, 14th December, Mr Stewart called upon Mr Mackay, the pursuer's Edinburgh agent, and after a conversation, which the latter gentleman narrates with clearness in his evidence, Mr Stewart asked and obtained from Mr Mackay an undertaking that nothing further should be done in the matter until Mr Stewart should communicate with him again. I think that Mr Mackay, who gave his evidence with marked moderation, was well entitled to trust and rely upon Mr Stewart, who was an old and intimate friend, to deal fairly with him in regard to this undertaking. It was not until 28th December that Mr Mackay learned from Mr Stewart that he had decided not to act for the defender in the case, and that the summons had better be served in the usual way, which was done on the 30th. By this time the disposition in favour of Mrs Mitchell had been executed and recorded as already explained. It is not proved whether or not, when Mr Stewart called upon Mr Mackay upon 14th December, he

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had already had his meeting with the, defender. But it is difficult, upon either hypothesis, to justify Mr Stewart's conduct, and he did not enter the witness-box to explain it. The pursuer's counsel maintained that in these circumstances I ought to hold that the defender is barred from pleading the execution of the disposition as exempting him from the jurisdiction of this Court. I have some sympathy with this view, but I do not think that I can give effect to it. It is not, in my opinion, proved or at all clear that Mr Stewart's request for delay, under whatever state of knowledge on his part it may have been made and acceded to, was necessarily the cause of the summons not being served until after the disposition had been executed. The execution and even recording of a simple conveyance such as this could obviously have been carried through in the course of a period of hours rather than of days. It seems to me, therefore, that if the defender desired to have the thing done, he would have been able to effect his purpose before the summons was prepared and served, quite apart from any delay asked from or granted by the pursuer's agent. For these reasons I think that upon this branch of the case also the pursuer's contention fails.

“It follows, in my judgment, that the defender's plea of ‘no jurisdiction’ must be sustained, and that the action must be dismissed, with expenses.”

The pursuer reclaimed, and argued—The Court had jurisdiction on the following grounds:—(1) Ratione domicilii The defender was at the date of the serving of the summons a domiciled Scotsman, the evidence clearly showing that he had abandoned his English domicile of origin and acquired animo et facto a domicile in Scotland. But even if this were not so, still by the law of Scotland forty days’ continuous residence in Scotland subjected the person so residing although a foreigner to the jurisdiction of the Court— Joel v. Gill, June 10, 1859, 21 D. 929, Lord Justice-Clerk Inglis at 939; Mackay's Manual p. 54; and the jurisdiction thus founded lasted for a period of forty days after leaving Scotland— Calder v. Wood, January 19, 1798, F.C., and M. 2250; Joel v. Gill, supra; International Exhibition 1890 v. Babty, May 26, 1891, 18 R. 843, 28 S.L.R. 648, Act 6 Geo. IV, c. 120, sec. 53; A.S., December 14, 1805; Dove Wilson, Sheriff Court Procedure, pp. 72, 73. In the present case the defender had only been absent from Scotland fourteen days at the date of the serving of the summons, prior to which he had resided in Scotland for a lengthy period. The following cases were also referred to— Brown v. M'Callum, February 14, 1845, 7 D. 423; M'Bean v. Wight, October 24, 1868, 7 Macph. 23, 6 S.L.R. 18; Pedie v. Grant, June 14, 1822, 1 S. 460, rev 1 W. & S. 716. (2) The possession of heritable property in Scotland by a foreigner founds jurisdiction. The present case must be taken on the footing that the defender was possessed of heritable property at the date of the action, because in the first place he had disponed his property on the eve of the action to avoid jurisdiction, and in the second place the summons would have been served before the defender could have disponed the property had it not been that the pursuer had at the request of the defender's agent delayed his summons.

Argued for the defender and respondent—There was no jurisdiction. (1) The question of a defender's domicile was only important in consistorial cases. In this case, however, it was clear that the defender's domicile was English, and the jurisdiction acquired by a foreigner's forty days' residence did not last after he had left Scotland. Bankton iv. 6, 5 and 6, Erskine i. 2–16, Darling's Practice i. 148, Shand's Practice 238–239, while laying down that forty days' residence founded jurisdiction, never suggested that such jurisdiction lasted after residence ceased. The question was settled by Corstorphine v. Kasten, December 13, 1898, 1 F. 287, 36 S.L.R. 174, in which International Exhibition 1890 v. Babty was disapproved; Colley v. Cameron, February 18, 1902, 9 S.L.T. 462; Watt v. Watt and Another, 9 S.L.T. 400; Johnston v. Strachan, March 19, 1861, 23 D. 758; Ritchie v. Fraser, December 11, 1852, 15 D. 205; Prescott v. Graham, February 2, 1883, 20 S.L.R. 573; Pickering v. Aitken, February 2, 1883, 20 S.L.R. 574. Act 6 Geo. I V. c. 120, sec. 53, and A.S., December 14, 1805 dealt only with citation and not jurisdiction, as also did the case of Calder, and all that Joel v. Gill settled was that if an Englishman came to Scotland and resided for forty days he was subject to the jurisdiction so long as he remained in Scotland thereafter. (2) At the date of the action the defender had no heritable property in Scotland. The purpose with which he had sold it was immaterial, and the facts on which the pursuer's last argument was founded were not proved.