Scottish Court of Session Decisions

The Fraser-Johnston Engineering and Ship Repairing Company, Limited, Aberdeen, pursuers, brought an action in the Sheriff Court at Banff against Charles Jeffs junior, Grimsby, owner of the drifter “Don Pedro,” defender, craving decree for £2276, 13s. 4d. alleged to be due in respect of repairs executed by the pursuers upon the “Don Pedro,” and also craving warrant to arrest on the dependence.

The pursuers prior to raising the action brought an application for letters of arrestment jurisdictionis fundandce causa in the following terms:—“The claim of the pursuers is for letters of arrestment ad fundandam jurisdictionem against the said Charles Jeffs junior. The defender is due to the pursuers the sum of £2276, 13s. 4d., being the cost of repairs to the drifter ‘Don Pedro,’ YH 441, executed on or about the months of September and October 1918, for which pursuers are about to raise action against him. The defender is not subject to the jurisdiction of the Courts of Scotland, but has the said drifter ‘Don Pedro’ belonging to him situated within the county of Banff. Therefore the pursuers crave the Court to grant warrant to the Clerk of Court to issue letters of arrestment at the pursuers' instance jurisdictionis fundandce causa, authorising arrestment of the said drifter, of which defender is owner, and of goods, debts, money or other moveable property belonging to defender situated within the county of Banff, all to remain under arrestment jurisdictionis fundandce causa, and meantime to grant warrant to dismantle the said drifter ‘Don Pedro.’ In respect whereof,” &c.

On 23rd April 1919 warrant for letters of arrestment as craved was granted.

The letters of arrestment were as follows:—“In the Sheriff Court of Aberdeen, Kincardine, and Banff, at Banff, John Campbell Lorimer, Esquire, Sheriff of Aberdeen, Kincardine, and Banff. To officers of Court, executors hereof, jointly and severally, hereby specially constituted, greeting: Whereas it is humbly meant and shown to me by The Fraser-Johnston Engineering and Ship Repairing Company, Limited, Stell Road, Aberdeen, pursuers, against Charles Jeffs junior, 364 Cleethorps Road, Grimsby, registered owner of the drifter ‘Don Pedro,’ YH 441, defender, that he is due the pursuers the sum of £2276, 13s. 4d., and that the defender is not subject to the jurisdiction of the Courts of Scotland as is alleged: The said pursuer therefore applied by writ in the Sheriff Court of Aberdeen, Kincardine, and Banff, at Banff, for warrant to arrest ad fundandam jurisdictionem—upon presenting of which writ, upon the day and date hereof, warrant was granted in manner and to the effect underwritten: Herefore it is my will that this my precept seen, ye pass, and in His Majesty's name and authority and mine lawfully fence and arrest, the said drifter ‘Don Pedro,’ YH 441, and all goods, debts, money, or other moveable property belonging to the defender, wherever the same may be found, within the county of Banff, all to remain under sure fence and arrestment at the said pursuers' instance, aye and until sufficient caution shall be found, acted in the Books of Court, ad fundandam jurisdictionem, as accords of law: The which to do I hereby commit to you,

Page: 215↓

and each of you, full power and warrant by this my precept. Given and subscribed by the Clerk of Court at Banff the twenty-third day of April Nineteen hundred and nineteen years. Robert G. Shirreffs.”

The execution of the arrestment was as follows:—“Upon the twenty-third day of April Nineteen hundred and nineteen years, by virtue of letters of arrestment ad fundandam jurisdictionem of the Sheriff of Aberdeen, Kincardine, and Banff, dated at Banff the twenty-third day of April Nineteen hundred and nineteen years, raised at the instance of The Fraser-Johnston Engineering and Ship Repairing Company, Limited, Stell Road, Aberdeen, pursuers, against Charles Jeffs junior, 364 Cleethorps Road, Grimsby, registered owner of the drifter ‘Don Pedro,’ YH 441, defender, I, John Gordon, sheriff officer, passed and in His Majesty's name and authority, and in that of the said Sheriff, lawfully fenced and arrested the ship or vessel called the ‘Don Pedro,’ YH 441, presently lying in the harbour of Buckie, of which ship or vessel the defender is owner or part owner, with her whole float, boats, furniture, and apparelling, all to remain in the said harbour of Buckie under sure fence and arrestment, jurisdictionis fundandæ causa, at the instance of the said pursuers, aye and until sufficient caution and surety be found, acted in the Sheriff Court Books of Banffshire, that the same shall be furthcoming to the said pursuers as accords of law: Conform to the said letters of arrestment ad fundandam, jurisdictionem. A just copy of arrestment to the effect foresaid I affixed and left upon the main mast of the said ship or vessel, and marked the letters G.R. above the same, which schedule of arrestment did bear the name and designation of George F. Barclay, residing in Buckie, witness to the premises.— John Gordon, Sheriff-Officer. G. F. Barclay.”

The defender pleaded, inter alia, which plea was added at adjustment—“2. No jurisdiction in respect that the arrestment of the vessel is inept.”

On 10th October 1919 the Sheriff-Substitute ( More) repelled the second plea-in-law for the defender, and later granted leave to appeal.

Note—“The defender in this action is an Englishman and registered owner of the drifter ‘Don Pedro,’ which is the subject of this litigation. On 23rd April 1919 arrestment of the ‘Don Pedro’ in the harbour of Buckie was used by the pursuers ad fundandam jurisdictionem. Following on the arrestment the action was served and appearance entered on 30th May. No objection to the arrestment used was taken in the original defences, but the defender's second plea-in-law—‘No jurisdiction in respect that the arrestment of the vessel is inept’—was added at adjustment,

“The defender contends that the form of arrestment used is bad in respect that the words contained therein, ‘aye and until sufficient caution and surety be found acted in the Sheriff Court Books of Banffshire, that the same shall be made furthcoming to the said pursuers,’ are words appropriate to an arrestment on the dependence.

There is apparently no statutory form of arrestment ad fundandam jurisdictionem, but the form used in this case while it contains words which are superfluous and inappropriate is the form generally in use in the Sheriff Courts of Scotland, and clearly bears on the face of it that its purpose is ad fundandam jurisdictionem. The arrestment, moreover, was used at the only time appropriate for founding jurisdiction, namely, before the action was raised.

While it is unfortunate that unnecessary words were used in the form in question, I am of opinion that their presence does not invalidate its efficacy for founding jurisdiction, and I must accordingly repel the defender's plea. I have the less hesitation in doing so, as I do not consider that the defender has suffered any prejudice, and in any event did not on entering appearance move the Court to recal the letters of arrestment.”

The defender appealed, and argued—Jurisdiction had not been founded. (1) The application for letters of arrestment was not in the statutory form which required a condescendence and note of pleas-in-law—Sheriff Courts (Scotland) Acts 1907 (7 Edw. VII, cap. 51), section 6, First Schedule, Rule 1, Form A, and 1913 (2 and 3 Geo. IV, cap. 28); Lewis Sheriff Court Practice, p. 537; Scots Style Book, i, pp. 417–421. That form of arrestment, to found jurisdiction, in a Sheriff Court action was wholly statutory and at first was limited to the arrestment of ships—Sheriff Courts (Scotland) Act 1877 (40 and 41 Vict. cap. 50), section 8 (4). [Counsel was stopped on that line of argument in respect that it had not been stated in the Court below.] (2) It was not too late to add a plea of no jurisdiction at adjustment. The defender had not prior thereto the execution of the arrestment before him; till closing the record he could state all other pleas; further, the object of adjustment was to fix the questions to be tried. Those must include the question of jurisdiction. Thorburn v. Dempster, 1900, 2 F. 583, 37 S.L.R. 415; Cairns v. Lee, 1892, 20 R. 16, per Lord Kinnear at p. 21, 30 S.L.R. 47; Sheriff Courts Act 1907 ( cit.), First Schedule, rules 45, 49, and 52, as amended by the Act of 1913 ( cit.), and Court of Session Act 1868 (31 and 32 Vict. cap. 100), sections 25, 26, and 29, were referred to. Assets Company Limited v. Falla's Trustee, 1894, 22 R. 178, 32 S.L.R. 143, was distinguished. [Counsel was stopped on this line of reply, that point not having been taken in the Court below.] (3) None of the writs were in proper form. They used the terms appropriate to an arrestment on the dependence. The application craved dismantling of the ship. The letters and the execution provided that the arrestment should only be loosed on caution, and the execution provided that the property arrested should be made furthcoming. As the Court would not pronounce an idle decree, arrestment was in original theory recognised as founding jurisdiction because it fixed goods in the jurisdiction upon which the decree might operate. Consequently it necessarily involved a nexus upon the goods

Page: 216↓

until decree, but loosable upon caution judicatum solvi. That theory was gradually and by imperceptible steps departed from. By 1846 the nexus was regarded as surviving only till the parties joined issue— White v. Spottiswoode, 1846, 8 D. 952. Next, the nexus was regarded as being merely such a nexus as would found jurisdiction and as being spent the moment the defender was made a party to the cause— Stewart v. North, 1889, 16 R. 927, per Lord President Inglis at p. 932, 26 S.L.R. 650, 1890, 17 R. (H.L.) 60, 28 S.L.R. 397. Finally the view came to be that no nexus at all was created— Craig v. Brunsgaard, Kjosterud, & Company, 1896, 23 R. 500, per Lord Kinnear at p. 504, 33 S.L.R. 348, in which White's case was cited; Leggat Brothers v. Gray, 1908 S.C. 67, per Lord President Dunedin at p. 71, 45 S.L.R. 67. As a result a ship, e.g., arrested to found jurisdiction could sail away the next moment. Consequently any order to dismantle or to find caution or make the goods forthcoming was wholly out of place. Some of the styles had not kept pace with the development of the law, e.g., Sellar's Sheriff Court Styles, p. 4. But others contained no reference to caution &c., e.g., Juridical Styles, 1st ed., vol. ii, p. 439, 2nd ed., vol. iii, p. 553, 3rd ed., vol. iii, p. 306, which provided that the goods were to remain under arrestment jurisdictionis fundandæ causa. Lees' Sheriff Court Styles, p. 85, was to the same effect. Even those words should be omitted—Graham Stewart, Diligence, p. 272 and p. 248, note 5, referring to Freres v. Kinnear, (n.r.), which showed that the omission of the reference to caution was the difference between arrestments ad fundandam and on the dependence. Further, the execution was disconform to the letters, which said nothing of making the goods forthcoming, and that alone was sufficient to invalidate the arrestment. Those irregularities were not immaterial or mere superfluities; misleading information was given, and a matter such as this, which was anomalous in character and of the nature of diligence, must be strictly regarded— Craig v. Brock & Ferguson, 1841, 4 D. 54, per Lord President Boyle at p. 56; Graham v. Bell, 1875, 2 R. 972—and it was not possible to disregard what was bad and leave what was good standing— Davidson v. Dunbar, 1821, 1 S. 41 (N.E. 46); Inch v. Thomson, 1832, 11 S. 93; Wilson v. Stronach, 1867, 24 D. 271; Graham Stewart on Diligence, p. 304.

Argued for the pursuers—The plea of no jurisdiction beingperemptory must be stated at the first judicial act in the cause by the defender, i.e., lodging defences. If not, he must be held to have prorogated the jurisdiction—Ersk. Inst., i, 2, 27; M'Laren, Court of Session Practice, p. 380, referring to Shaw v. Dow, 1869, 7 Macph. 449, 6 S.L.R.297. Such a plea could not be added in revised pleadings or by amendment. Adjustment was for the purpose of meeting the opponent's case, and such a plea could not be timeously added then— Assets Company, Limited v. Falla's Trustee ( cit. sup.). [Lord Cullen referred to the Court of Session Act 1868 ( cit. sup.), sections 25 and 26, and Lord Mackenzie referred to Mackay's Manual, p. 229, and Arthur v. Lindsay, 1895, 22 R. 417, 32 S.L.R. 334.] If the arrestment was valid it was not competent to revert to the initial application for it. Before 1907 such ex parte applications contained no condescendence and pleas-in-law. In 1907 that form was applied generally—Act of 1907, section 39, First Schedule, and Form A. In 1913 the older forms were reverted to, and per incuriam an application such as the present was treated like an ordinary action. Rules 1 and 2 of the First Schedule as amended only applied to actions which had begun. The older form of action contained no condescendence or pleas-in-law—Sellar, Sheriff Court Styles, p. 5. Further, the present application was a summary application which required no condescendence and pleas-in-law—section 50, and Form K. Further, the arrestment was valid. An arrestment ad fundandam did create a nexus. There was no decision to the effect that it did not. Craig's case merely decided that a defender against whom jurisdiction had been founded could thereafter not destroy that jurisdiction by his own act, and the dicta to the effect that there was no nexus were obiter, and further, proceeded upon the concession of counsel. Leggat's case only went the length of deciding that there was no nexus after the action had begun. The dictum of Lord Justice-Clerk Moncreiff in Trowsdale's Trustee v. Forcett Railway Company, 1870, 9 Macph. 88, at p. 92, 8 S.L.R. 82, was obiter. The other cases supported the pursuers to the effect that a nexus was laid on till jurisdiction was founded— Stewart v. North ( cit. sup.); Carlberg v. Borjesson, 1877, 5 R. 188 (H.L.) 217, 15 S.L.R. 779; Malone & M'Gibbon v. Caledonian Railway Company, 1884, 11 R. 853, 21 S.L.R. 572; Herries v. Liddesdales, 1755, M. 2044; Longworth v. Hope, 1865, 3 Macph. 1049. Further, the case of a ship was special, for there the old original maritime practice still persisted, and the law still remained as stated in Ersk. Inst., i, 2, 19—Duncan and Dykes, Principles of Civil Jurisdiction, pp. 84–86. As regards the styles it was not hujus loci to refer to Court of Session styles, for arrestments in the Sheriff Court to found jurisdiction, while not available to found jurisdiction in an action there, might be available to found jurisdiction in a Court of Session action— Dickson & Walker v. John Mitchell Company, 1910 S.C. 139, per Lord President Dunedin at p. 144, 47 S.L.R. 110. Consequently the Sheriff Court had styles of its own. Those supported the pursuers—Forrest Shearer's Sheriff Court Styles, pp. 88 and 89; Sellar's Sheriff Court Styles, p. 4; Lewis on Sheriff Court Practice, p. 538. Lees' Sheriff Court Styles, p. 84, note ( a), implied that there might be a nexus, for an arrestment on the dependence was merely regarded as ob majorem cautelam. Even the Court of Session styles favoured the pursuers—Juridical Styles, 1st ed., ii, pp. 440, 441, 2nd ed., iii, p. 555, 3rd ed., iii, p. 316. But even if there was no nexus, then all the styles contained superfluous and misleading terms, yet the defender did not attack them. Here the writs were quite clear to the effect that the arrestment was solely ad fundandam, and they were not vitiated by the fact

Page: 217↓

that they contained as every style did superfluous words.

At advising—