Scottish Court of Session Decisions

On 16th November 1906 Mrs Margaret Marshall or Love, residing at Newton of Barr, Lochwinnoch, Renfrewshire, wife of Andrew Love, chief engineer, s.s. “Hassara,” B.I.E. Club, 4a Ravelin Street, Bombay, India, raised an action against her husband (the compearing defender), and certain others who were called for their interest, in which she sought declarator that certain sums of money contained in three bonds and dispositions in security over heritable property in Scotland belonged to her exclusive of the jus mariti and right of administration of her husband, and that she was entitled without his consent to discharge or assign the said bonds, and to grant all necessary deeds in regard thereto.

In his answers the defender stated that he was resident in India, and, inter alia, pleaded no jurisdiction.

On 2nd March 1907 the Lord Ordinary ( Dundas) repelled the defender's plea of no jurisdiction, found and declared in terms of the conclusions of the summons in regard to the first two bonds, and quoad the third allowed a proof before answer.

Opinion.—The pursuer, a married woman, seeks declarator that certain bonds and dispositions in security, described in the summons, so far as she has right thereto, belong to her exclusive of the right of administration of her husband, who is the compearing defender; and that she is entitled without his consent ‘to discharge or assign and to grant all necessary deeds in connection with the said bonds and dispositions in security, sums of money therein contained, and lands therein described.’ The compearing defender maintains the negative of these propositions. But he states a preliminary defence which requires consideration. It appears from the pursuer's pleadings that the parties were married on 6th August 1902: that on 17th October 1902 the defender ‘returned to India to a situation which he had held previous to the marriage’; and that, ‘with the exception of the two months after the marriage, and the six months in 1906 when he was home on leave of absence, the pursuer's husband had been continuously resident in India since the date of the marriage.’ The defender is described in the summons as ‘chief engineer, s.s. “Hassara,” B.I.E. Club, 4a Ravelin Street, Bombay, India.’ He explains that he is ‘resident in India. He is a marine engineer, sailing from and to various ports in India, and has his headquarters at Bombay.’ The defender pleads—‘1. No jurisdiction.’ His counsel argued that in this state of the pleadings I ought to sustain this plea de piano and dismiss the action. The plea as stated — though it has passed muster in various reported cases—is not, I think, in point of form a plea-in-law at all, because it does not amount to a proposition in law. But the defender's counsel contended that his client being resident in India was eo ipso outwith the jurisdiction of this Court. He referred to the dicta of Lord Kyllachy in Buchan, 1905, 7 F. 917, at p. 922, 42 S.L.R. 706—that ‘apart from the ownership

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of heritage in Scotland, or arrestment jurisdictionis fundandce causa, residence, and not domicile, is what in ordinary actions determines the jurisdiction’; and in Tasker, 1905, 8 F. 45, at p. 51, 43 S.L.R. 42—that ‘the only domicile to be regarded in ordinary civil actions is the ordinary forensic domicile—the domicile held to be constituted by forty days' residence—and so held, as Erskine explains, “by custom, and in order to prevent disputes.”’ I do not think that the wide general question which was the subject of Lord Kyllachy's observations in these cases is here raised for consideration or decision. In the first place, the defender's averments are not, in my judgment, sufficiently specific to raise it, even if the pursuer's somewhat gratuitous contributions on the subject are prayed in aid. The defender's record contains no substantive averment that he is not subject to the jurisdiction of this Court; nor any definite statement as to the character or quality of his residence in India, or other facts from which an inference might be drawn that the jurisdiction of the Scots Courts is ousted. I would have given the defender's counsel an opportunity of amending his record if I had not formed an opinion adverse to his plea upon grounds other than want of specification in his averments upon this matter. It appears to me that the questions in dispute in this case relate essentially to Scots heritage. The bonds and dispositions in security are heritable, and there is a dispute as to the title necessary for their discharge, or for the transfer of the lands contained'in them. The pursuer claims that she is entitled to deal with these heritable subjects apart from her husband's curatorial right of administration. The defender, on the other hand, maintains that he is entitled to exercise this right. The question so raised is admittedly one of Scots law, and it can, in my opinion, be determined only by the Court in Scotland. I am not aware of any decision expressly determining the point under consideration. The case of Ashburton, 1892, 20 R. 187, 30 S.L.R. 194, is instructive but not conclusive. It was there decided that the defender, a foreigner, being infeft in Scots land under a bond and disposition in security, was subject to the jurisdiction of the Scots Court in all actions relating to the land contained in the security; and also that, being a trustee in a Scots trust including Scots heritage, he was subject to the jurisdiction of the Scots Courts in all actions relating to the trust and the trust-estate, and therefore in an action in which this Court had to determine whether the trust still subsisted or had been brought to an end. In the present case the defender is not infeft in Scots heritage. But that fact is not, in my judgment, material. The dispute is none the less one as to the right of administration and transference of Scots heritage, and must therefore, as I think, be determined by the Scots Courts and by them only. If these views are correct, they afford sufficient ground for repelling the defender's plea of'no jurisdiction.’ …

“When one comes to the merits of the case the course is plain enough. The pursuer avers that her father Mr Marshall, who died in 1890, by his trust settlement left a legacy to her of £1000 payable on her attaining the age of twenty-five, which should be expressly exclusive of the jus mariti and right of administration of any husband she might marry; that at the date of his death her father held the bonds (first) and (second) respectively described in the summons; and that his trustees did not realise these bonds, but by arrangement with the pursuer, who was then unmarried, made up title to them and assigned them to her in pro tanto satisfaction of her legacy. In regard to these bonds the defender's counsel frankly, and I think properly, admitted that upon the merits of the case he could state no defence to the pursuer's demand; and I shall therefore grant decree of declarator as concluded for so far as they are concerned. The pursuer further avers that when the balance of her legacy was paid over to her by her father's trustees, she invested it in a share, viz.—£200, of the bond (third) described in the summons. This statement is denied by the defender; and he goes on to aver that the £200 so invested by the pursuer was money which he had remitted to her before the marriage to be invested by her on his behalf. Counsel for the parties were agreed that there must be a proof upon this part of the case, and I shall allow one accordingly.”

The defender reclaimed.

The argument of the reclaimer appears from the opinion supra of the Lord Ordinary. The respondent was not called on.