Scottish Court of Session Decisions

At advising on 18th January 1933,—

Lord Hunter .—In this action the pursuer, who resides in Glasgow, seeks to recover damages from the London, Midland and Scottish Railway Co. in respect of the death of his son. The accident which resulted in that death occurred at Leighton Buzzard in England. The deceased held a ticket for the journey which had been issued to him in Glasgow.

As the pursuer was not a party to the contract entered into between his deceased son and the defenders, he cannot found upon the breach of the defenders' obligation to carry their passenger safely. That is a purely personal obligation, which, in the event of the passenger's death, does not give a right of action under the contract to his personal representatives. The action is founded on delict—in this case the negligent act of one of the defenders' employees, for which the defenders are liable on the doctrine respondeat superior.

The pursuer claims damages (first) under the head of solatium, and (second) under the head of pecuniary loss. According to the common law of Scotland a father is entitled to recover damages under both these heads in respect of the death of a son owing to the negligence of a third party. In some of the earlier cases this right of action given to a near relative of a person who has been killed by the negligent act of another is referred to as a derivative action. No doubt, but for the death, there would have been no action. I think, however, that it is now recognised that the right of action is more properly treated as a direct personal action given by the law of Scotland to the husband or wife, parent or child, of one who has met his or her death owing to the negligence of a third person. Lord Watson in Clarkeexplains that the rule does not rest on any definite principle, "but constitutes an arbitrary exception from the general law which excludes all such actions, founded in inveterate custom, and having no other ratio to support it." In the case of Davidson Lord President Dunedin said:

"It is to be noted that it"

(i.e., the action by a father for the death of his child) "is not a derivative action. I think that is clear from what was said by Lord President Inglis in the case of Eisten where he pointed out that this kind of action was not an action of assythment, although it had grown out of that action. It is really an independent action; and a good proof of that is that, if it were a derivative action, it would necessarily belong to the executors of the deceased and not to the relatives. So this is an independent action at the instance of the father for an injury done to the father himself."

According to English common law, in the case of a person's death by the negligent act of another, no right of action against the person in fault is given either to the personal representative or to the relatives of the deceased. But by the English Act 9 and 10 Vict. cap. 93, commonly known as Lord Campbell's Act, a right of action is given to the representative of the deceased for behoof of the widow and/or other near relatives in cases where an act or default is such as would, if death had not ensued, have entitled the party injured to maintain an action.

From the above statement as to the different positions under Scots and English law it is manifest that the amount which the pursuer will recover may vary very considerably according as his claims are determined by the one or the other system of law. In England the pursuer's claim to solatium would be disallowed. It is therefore of great importance to consider whether the right to solatium is to be determined according to the lex fori, which allows it as a good claim, or according to the lex loci delicti, which rejects it. The defenders' plea that the pursuer's claim for solatium should be excluded was rejected by the Lord Ordinary, on the ground that, once it was admitted that the act giving rise to the action was wrongful both by the law of the forum and by the law of the place where the act was committed, it was for the former law to determine the different elements of the claim of damages. In any event, he considered himself bound by the decision in Horn.

If the question is looked at apart from that decision, I think that the pursuer's right to claim damages under the head of solatium ought to be determined by the law of the place where the accident occurred. In the case of Goodman Lord Shand said (at p. 451):

"But just as the lex loci contractus must be applied in reference to the terms and effect of the contract for the purpose of ascertaining whether liability exists, so I think the lex loci must be applied with reference to the acts committed, in order to ascertain whether there be liability."

This passage was in the nature of an obiter dictum. It was, however, quoted with approval by Lord President Dunedin in the case of Convery v. Lanarkshire Tramways Co . In that case an Irishman, whose son had been killed in a tramway accident in Scotland, raised an action in Scotland to recover damages by way of solatium for the death of his son. In the course of his opinion Lord Dunedin quotes passages from the well-known authors on international law in support of the view that liability has to be determined by the lex loci and not by the lex domicilii of the pursuer. In particular, he quotes from Wharton's Conflict of Laws a passage where the author points out that Savigny, almost alone of famous jurists, takes the view that "the law of the place of process is to obtain, not that of the place where the delict was committed." No doubt in Convery's case the country of the forum and the place of delict were the same, but that circumstance does not affect the reasoning. If the accident had occurred in Ireland, where the claim by a relative for solatium is not recognised, I think it would have been excluded although the lex fori would have allowed it.

There are two passages in Bar's International Law which have a direct bearing upon the question. At page 639 of Gillespie's edition of that work the author says:

"If the question is one of liability for damage done by … servants … it is obvious that the liability can never be broader or go further than the law of the place where the damage takes place permits."

In an earlier part (p. 636) of the same work this statement occurs:

"To determine the matter by the lex fori where the lex loci actus gives no claim or one that does not go so far, is utterly unjust, and all the more that it rests on the good pleasure of the pursuer in many cases whether the action shall be raised at this or at that place."

The case of Horn, on which the Lord Ordinary founds, undoubtedly creates a difficulty in the way of giving effect to the view which I have just indicated. According to the rubric in that case a passenger purchased from a Scottish railway company a through ticket from a station in Scotland to London. The journey had to be performed by travelling over the line of the Scottish company and the lines of two English companies. The passenger was killed owing to an accident on the line of one of the English companies. An action of damages and solatium was brought against the Scottish company at the instance of the father of the deceased. The jury returned a verdict in the pursuer's favour for £700—£550 being for pecuniary loss and £150 for solatium. Certain exceptions were taken by the defenders to the charge of the presiding judge, Lord Gifford. The main exception was that, as the pursuer's claim rested upon delict, the jury should have been directed that the fault of the English company was not the fault of the defenders in the sense of the issue. The Lord Justice-Clerk and Lord Gifford rejected the contention of the defenders on this point. Lord Ormidale dissented. At the same time an exception was taken to any award under the head of solatium. The rubric in the case does not make any special reference to this point. Lord Ormidale in his dissenting opinion does not mention the matter. Both the Lord Justice-Clerk and Lord Gifford express opinions which, if they are to be regarded as containing an accurate statement of the law, are conclusive in favour of the pursuer's contention in this case. The Lord Justice-Clerk said (at p. 1063):

"The lex loci delicticannot rule this question. The law of the place where the breach of contract occurred cannot determine the consequences of the breach of it, because such cannot be assumed to have been the intention of the parties to it."

In so stating the proposition his Lordship apparently overlooked the point that the pursuer of the action was not in a position to found upon a breach of contract. Lord Gifford said(at p. 1072):

"An action like the present, not laid upon contract directly but upon negligence arising in the course of the execution of a contract, is a common law action brought in the common law Courts of Scotland and founded upon Scottish law. I think that action is competent; and that leads to the result which your Lordship in the chair has stated, that in awarding damages, if the action is competent and the defender is the proper defender, the jury must necessarily go by the law of Scotland. I concur in that result. In like manner, if the through ticket had been issued in London and the late Henry Horn had been killed in Scotland, then in any action in London against the Great Northern Company laid on Lord Campbell's Act, the present pursuer could not have recovered solatium in the English Courts, although the accident in the case supposed had occurred in Scotland."

This statement appears to me to be in direct conflict with the passages from Bar and the opinion of Lord Dunedin to which I have referred.

In Kendrick v. Burnett certain persons were drowned in a collision on the high seas through the fault of an English ship. In an action brought in Scotland by relatives of the deceased it was held that English defenders could not be found liable for solatium for injury done on the high seas unless by the law of England they were liable. The Lord Ordinary held that the general rule is that, where reparation is claimed on account of what is a wrong both according to the law of the place where it was committed and according to the law of the country where the action for redress is raised, the remedy falls to be determined by the law of the latter country, and that the measure of damages pertains to the remedy, and accordingly falls to be determined by the lex fori. He accordingly held that the claim for solatium could not be excluded. The First Division of the Court took a different view. The Lord President (Robertson) said (at p. 86):

"The simplest and, in my judgment, a perfectly legitimate way to consider this question is to assume the case … of an action raised solely to recover solatium. … Is the claim good because it is sued for in a country according to the common law of which such a right does arise out of such an act? It seems to me impossible to support the affirmative on any reasonable ground. The question is not of the remedy, it is whether a right exists, or ever existed, to found an action of any kind."

In a later part of his opinion his Lordship says (at p. 87):

"No authority was cited to us showing that there is any rule that the measure of damages is to be determined by the lex fori. In many instances, and especially in details, it must be practically impossible to apply any other rule, and the avowal of this is less a conclusion of international law than the expression of a practical necessity. … Where in the inception of a cause notice is taken of a palpable and separable head of claim which is bad in the law which would determine the existence or non-existence of the right sued on, I think that the Court is bound to give effect to the distinction."

In the same case Lord M'Laren expressed the view that measure of damages is part of the law of evidence, and as such would seem to pertain to the lex fori. He added, however (at p. 88):

"I am not of opinion that solatium fits into this category. The claim which the Scots law accords to the relatives of the deceased is a claim of damages equivalent to the claim given by English law plus solatium for injury to feelings. The claim which the law of England recognises, and for which the defenders as English owners are bound, is only a part of the claim which the law of Scotland accords; and unless we are prepared to affirm that the part is equal to the whole, I cannot see how we can treat these as identical claims, involving a mere variation in the mode of computation."

Lord Kinnear said (at p. 90):

"If the law of England gives the pursuers no right of reparation at all, or no right of reparation for wounded feelings, or anything else but pecuniary loss, I do not see how they can acquire other rights by any rule of our own law and practice as to the manner in which, assuming the right to be vested in them, the remedy ought to be administered."

The decision in Kendrick, and the expressions of opinion by the learned judges who took part in that decision, render it, in my opinion, impossible to hold that the views of the Lord Justice-Clerk and Lord Gifford in the case of Horn to which I have referred are accurate. I think that the defenders' plea that the pursuer's claim for solatium ought to be disallowed as it is not recognised as a good cause of action by the law of England, which is the lex loci, is well founded and ought to be sustained, and the interlocutor of the Lord Ordinary, in so far as he repelled this plea, recalled.

Lord Anderson .—The pursuer's son was killed as a result of a railway accident at Leighton Buzzard in England. He was travelling in one of the defenders' trains from London to Glasgow, and he had a railway ticket for the journey which had been purchased in Glasgow. The pursuer has brought the present action against the defenders, claiming damages in respect of the death of his son, which he avers was caused by the negligence of the defenders' servants. The defenders admit that the death was due to the negligence of their servants. It is not disputed that the Courts of this country, as well as those of England, have jurisdiction over the defenders. Nor was it maintained by the defenders that the pursuer's claim was not actionable in Scotland. By international law, if a claim is wrongful and actionable by the lex loci delicti and also by the lex fori, it is actionable in either territory if jurisdiction exists. It is common ground that a remedy was open to the pursuer either in England or in Scotland, and, accordingly, it was not contended that his action, as laid in Scotland, was wholly incompetent.

One of the matters discussed was the part played by the contract of carriage into which the deceased had entered with the defenders. The importance of this contract consists in this—that it charges the defenders with a duty towards the deceased. They undertook to carry him as a passenger without negligence. That duty they failed to discharge, and were thus in breach of their contract with the deceased. But the pursuer was not a party to this contract, and therefore cannot sue upon it. His claim is one at common law, and its legal basis is that the defenders were in breach of their duty in executing a contract. It is further to be noted that the pursuer's claim against the defenders is independent and personal. Had he been suing in England, his claim, by the provisions of Lord Campbell's Act (9 and 10 Vict. cap. 93), would have been made in a representative capacity. The pursuer sues for a random sum of damages which embodies two distinct heads or items of claim—(1) for patrimonial loss; (2) for solatium in respect of wounded feelings. The law of England recognises a claim for patrimonial loss but not one for solatium, and the main question raised by the reclaiming note is whether the pursuer is entitled to recover any damages in respect of solatium. It was conceded that his averments of patrimonial loss were relevant.

There would seem to be four legal systems to which appeal might possibly be made in a case like the present: (1) The law of the pursuer's domicile; (2) the law of the defenders' domicile; (3) the law of the forum; and (4) the law of the locus delicti.

As regards the law of the pursuer's domicile, it is quite well settled that it plays no part in the determination of the rights of parties. In Convery the Lord President (Dunedin) said (at p. 121):

"There is no trace in the great authorities that the law of the pursuer's domicile has anything to do with it"

—that is, with the pursuer's right to recover damages.

It is equally clear that the law of the defenders' domicile is of no materiality. If a Neapolitan committed a delict in Scotland giving rise to a claim for reparation, he could not hope to elide this claim by pleading that it was not recognised by the law of his own domicile.

The lex fori is regulative of procedure, including the rules of evidence. It is also said that the law of the forum is regulative of the remedy, and the Lord Ordinary considers that this is conclusively settled. This, however, seems to be questionable. No doubt it was so laid down in the case of Horn. The Lord Justice-Clerk said in that case (at p. 1064):

"The question is, what elements of damage shall enter into the amount of reparation claimed in this action? I think the lex fori must determine that matter, and it is hard to see what other test could be applied."

In Kendrick, however, opinions to the opposite effect were expressed. The Lord President (Robertson) said (at p. 87):

"No authority was cited to us showing that there is any rule that the measure of damages is to be determined by the lex fori… as matter of doctrine I do not think it can be asserted as a principle that the measure of damages is for the lex fori"

; and Lord Kinnear said (at p. 89):

"I am unable to agree with the Lord Ordinary's observation that the question of damages belongs to the remedy, and therefore falls to be determined by the lex fori."

The general rule of international law is that the rights of parties, in a case like the present, are regulated by the lex loci delicti. That rule was doubtless reached on the consideration that the tribunal nearest the place of the delict was the most convenient for the investigation of the occurrence, and that it was most appropriate that the law of that tribunal should be applied. If the extent and nature of the remedy falls to be determined by the lex loci delicti, as suggested in Kendrick, then it is plain that the defenders' contention as to solatium must be sustained, as the law of England does not recognise such a claim. Assuming, however, in the pursuer's favour that the lex fori is regulative of the remedy, the question for decision would seem to be whether a claim based on solatium is a mere head or item of the general claim for damages, or whether it is a substantive jus or right for which a basis has to be found in the lex loci delicti. The Lord Ordinary puts the pursuer's point of view very neatly when he says:

"The elements of damage which enter into an award are a principal means of determining its measure, and the measure is merely the resultant of the sum of the elements."

It seems to me, however, that he assumes the point which is in dispute by including a claim for solatium amongst "the elements" of the damages sued for.

The sheet-anchor of the pursuer is the case of Horn in which the circumstances are almost indistinguishable from those in the present case, and in which an award as for solatium was sustained. If Horn was well decided, the pursuer must prevail. But I am unable to reconcile the decision in Horn with two cases of co-ordinate authority which followed it, and with two cases of superior authority which were decided in recent times.

I have already referred to the first two of these cases—Kendrick and Convery—which appear to me to establish these two propositions: (1) That a claim for damages based on solatium is a substantive and independent jus actionis and not a mere head or item of damages; (2) that, if the lex loci delicti does not recognise such a right, the Court of the forum is debarred from awarding damages as for solatium. In Kendrick the Lord President said (at p. 86):

"The simplest and, in my judgment, a perfectly legitimate way to consider this question is to assume the case (and it is said to exist in at least one of the claims grouped in this action) of an action raised solely to recover solatium. I shall assume, as is the case here, that neither by the law of the place where the act occurred, nor by the law of the domicile common to the pursuer and the defender, does the delict give rise to the claim. Is the claim good because it is sued for in a country according to the common law of which such a right does arise out of such an act? It seems to me impossible to support the affirmative on any reasonable ground. The question is not of the remedy, it is whether a right exists, or ever existed, to found an action of any kind"

; and again (at p. 87):

"Indeed it may be questioned whether the claim for solatium is, properly speaking, a mere head in a claim of damage, and much may be said in support of the negative. But, be this as it may, the claim stands out from the rest of the action in its legal character and is capable of separate appraisement. This being so, no practical difficulty stands in the way of its being discriminated from the rest of the claim, and its validity determined by the same law by which it would be judged if it stood alone."

And Lord M'Laren (at p. 88):

"The claim which the Scots law accords to the relatives of the deceased is a claim of damages equivalent to the claim given by English law plus solatium for injury to feelings. The claim which the law of England recognises, and for which the defenders, as English owners, are bound, is only a part of the claim which the law of Scotland accords; and unless we are prepared to affirm that the part is equal to the whole, I cannot see how we can treat these as identical claims, involving a mere variation in the mode of computation. I am therefore of opinion that the claim of solatium must be disallowed."

Again, Lord Kinnear said (at p. 90):

"If the law of England gives the pursuers no right of reparation at all, or no right of reparation for wounded feelings, or anything else but pecuniary loss, I do not see how they can acquire other rights by any rule of our own law and practice as to the manner in which, assuming the right to be vested in them, the remedy ought to be administered."

In Convery the Lord President (at p. 119), after referring with approval to the opinion of Lord Shand in Goodman, refers to Wharton's Conflict of Laws. He says:

"But there is much other authority not cited at the discussion of the case. The matter is dealt with by the well-known authors on international law. I can quote conveniently from Wharton's Conflict of Laws, section 475, where the authorities are collected. ‘By the Roman law, wherever a delict is committed, whether the stay of the delinquent is permanent or transient, there is the forum delicti. And the local law applicable is, and continues to be, that of such special forum.’ The author then goes on to point out that Savigny, almost alone of famous jurists, takes as he thinks the erroneous view that ‘the law of the place of process is to obtain, not that of the place where the delict was committed.’ Then at section 477 he continues: ‘Bar distinguishes delicts which call for the restoration or reparation of an injury and those which call for a fine or penalty payable to the injured party. The first he subjects to the law of the place where the delict was committed. Every person, foreigner or subject, is bound to repair any damage done by him, according to the local law.’ He adds that the same rule applies in the United States. We have therefore in these passages a satisfactory general statement of the rule in accordance with Lord Shand's dictum, though no doubt be did not lay down the rule with so wide an application."

Law to the same effect is laid down in two Privyoun cildecisions—Canadian Pacific Railway Co. v. Parent, and Walpole v. Canadian Northern Railway Co .

That a claim for solatium is a substantive right and not merely an element in an estimate of damage seems to me to be more apparent if these two suppositions are made—(1) that the claim is for solatium alone, and (2) that the law of the forum prescribes that a definite sum be payable as solatium in respect of a death caused by negligence (as was the rule in some ancient systems of law). In such a case there would be no complication by reason of a concurrent claim in respect of patrimonial loss, and assessment of amount of damage would be unnecessary as the amount is fixed by law. A claim in respect of solatium in such a case would naturally and necessarily be regarded and described as a right to exact from the negligent wrongdoer the sum fixed by law. As the rights of parties are regulated by the lex loci delicti, such a right would be conceded only if it were recognised by the lex loci delicti.

On the whole matter I am of opinion that the defenders' arguments are well founded, and that their plea to relevancy to the extent and effect contended for should be sustained.

Lord Murray .—On 22nd March 1931 the "Royal Scot" express train from London to Glasgow, which is run by the defenders, left the rails at Leighton Buzzard. As a result the pursuer's son, who was a passenger on board the train, was fatally injured. The defenders admit that the accident was caused by the fault of their servants.

In this action the pursuer claims damages for the loss thereby caused to him. His averments of damage are directed (1) to alleged patrimonial loss, and these averments were, for the purposes of the present argument, admitted to be relevant; and (2) to a claim as for solatium. The only question argued before us was as to whether the pursuer's averments of damage in so far as directed to solatium should or should not be remitted to probation. No question is raised as to the jurisdiction of this Court, and the defenders' plea of forum non conveniens has been withdrawn.

I may say at the outset that, in my opinion, the case stands clear of any question of or relating to contract. The deceased had, no doubt, a contractual relation with the defenders. He was travelling on a ticket issued to him by the defenders in Glasgow and covering his return journey. Whatever importance this fact might have had in a question between the deceased (or, under certain circumstances, his executor) and the Company is here not material. The pursuer is no party to the contract. He does not and cannot found upon it. No question, accordingly, here arises relating either to the lex loci contractus or to the lex loci solutionis.

The present case is laid solely on fault or negligence, the pursuer's title being based on the common law of Scotland, which confers on certain near relatives of a person killed by the negligence of another a right of action against the party guilty of such negligence. I need not resume our law on this head, which has already been fully dealt with by your Lordships. It is, in particular, quite settled that the right of action so conferred by our law is an independent right of action, and is in no sense a representative or derivative right.

Here, however, the locus delicti (Leighton Buzzard) happens to have been in England. It is accordingly not disputed that the general rule of private international law applies, viz., that, in order to found a good action, the act complained of must be an actionable wrong by the law of the forum, and also a wrong, or at least a non-justifiable act, by the local law—that is, the lex loci delicti.

In so far as the lex loci delicti is concerned, it is common ground that, by the common law of England, the pursuer could maintain no action in respect of the death of his son, albeit caused by the negligent act of the defenders. A statutory right of action, however, is in such circumstances conferred by Lord Campbell's Act upon the deceased's representatives, or, whom failing, certain near relatives, but under certain definite restrictions and conditions which have no place in our law. In particular, no action will lie in England at the instance of the deceased's representatives to recover damages on the head of solatium. The sole question is whether, by laying his action in Scotland, the pursuer is entitled to recover damages upon grounds which are denied to him by the lex loci delicti. The answer to the question depends, in my opinion, upon whether the disability in question is one which affects the matter of right or one which merely affects the matter of remedy. If it be the former, the lex loci delictigoverns the case, and the pursuer's case fails; if the latter, the lex fori governs, and the pursuer succeeds.

The above stated test is that adopted by Mr Dicey (Conflict of Laws, p. 850 et seq.), where he points out the distinction between matters which regulate procedure and matters which affect substantive right. No doubt procedure is a term of somewhat indefinite connotation, but, in his opinion, the true view is that any rule of law which affects, not the enforcement of a right, but the nature of the right itself, does not come under the head of procedure; or, in other words, is not governed by the lex fori. The same view is taken by Mr Justice Story (Conflict of Laws, (8th ed.) section 558 et seq.), where he states:

"In regard to the merits and rights involved in actions, the law of the place where they originated is to govern."

To use the language of the civilians, the lex fori which governs the remedy goes only to matters "ad litis ordinationem"; the lex loci actus, whether of contract or delict, as the case may be, governs all questions of rights or merits which go "ad litis decisionem."

I am of opinion with your Lordships that the disability here in question goes to the matter of right, and not to the matter of remedy. It forms at least a real or inherent qualification of the statutory right conferred by English law; indeed there is, in truth, no liability, and therefore no jus actionis, at all in England in respect of the subject-matter of the claim under discussion. A claim based on solatium and a claim for reparation of pecuniary loss sustained appear to me to be distinct and separate matters. If no jus actionis is conferred by the lex loci in respect of the former, it is not, in my judgment, for the lex fori to create it. In England the former involves no "damnum" at all. And, after all, a claim for damages is merely an accessory to or consequent of the principal matter, namely, some jus actionis.Without such a jus it cannot arise, for there is nothing to which it can attach.

On principle, accordingly, the pursuer's case, in my judgment, fails.

A large number of decisions were cited in the discussion, many of which do not appear to me to touch the main question at issue. The opinion of Lord Shand in the case of Goodman, which was approved in Convery's case, appears so me, however, to be directly in point, and it is supported and confirmed by the decision in the case of Kendrick. On the other hand, there is no doubt that the respondent's argument is directly supported by the opinions delivered by the Lord Justice-Clerk and Lord Gifford in the case of Horn, by which decision the Lord Ordinary has felt himself bound. I need not again examine these cases in detail, for they have already been fully dealt with by your Lordships. I agree that the opinions referred to in the case of Horn cannot be reconciled with the other cases above mentioned, and, with all respect to the learned judges, I am unable to accept these opinions as well founded in principle. In my opinion the question at issue falls to be decided in accordance with the cases of Goodman, Kendrick, and Convery.

I think it right, however, to notice the case of Machado v. Fontes, upon which the respondent quite justly laid stress, for the decision is adverse to the view I have adopted. There an action of damages for a libel published in Brazil was brought in the English Courts. The libel was admittedly a non-justifiable act in Brazil, for it could have been made the subject of criminal proceedings. The defendant, however, pleaded that, by the law of Brazil, no civil liability for damages attached in respect of the libel. The Court of Appeal, consisting of Lords Justices Lopes and Rigby, held that the plea was irrelevant, and that, notwithstanding, a good action for damages lay in the English Courts. They held that the act complained of being a wrong alike by the lex fori and the lex loci delicti,the rule of international law was prima facie satisfied. So far no exception can, of course, be taken to the judgment, which purports to proceed on the familiar cases of Phillips v. Eyre and The "M. Moxham." The rule being thus satisfied, the Court held that civil liability for damages in England followed as a matter of course. This upon the ground that "damages" pertain to the "remedy," and are therefore exclusively a matter for the lex fori. With all respect to the learned judges, the conclusion does not necessarily follow from the premises. Neither Phillips v. Eyre nor The "M. Moxham." while they illustrate the rule of law, affords any warrant for the above conclusion; rather the contrary, for in both these cases the English action was dismissed upon the ground that no civil liability for damages in respect of the wrong complained of was imposed by the lex loci—see Phillips's case, per Willes, J., at p. 29, and Mellish, L.J., in the Moxham case, at p. 113. In other words, inasmuch as the lex loci conferred no jus actionis upon the pursuer, no accessory claim for damages could accordingly arise. The point which is now taken in the present case was, however, raised, and discussed in the case of Scott v. Lord Seymour . This case was cited in Machado'scase, but, curiously enough, the judgments make no reference to it. In Scott's case Wightman, J., certainly expressed an opinion directly in favour of the respondent's argument to the effect that damages could be recovered under the lex fori even though no liability for damages was imposed by the local law. From this opinion Williams, J., dissented, and all the other judges in Exchequer Chamber reserved their opinions. The question did not, however, arise for decision, for the Court held, on a construction of the defendants' pleas, that these, in effect, conceded that liability for damages was imposed by the lex loci. In my opinion the views of the learned judges in Machado's case in regard to the matter of damages cannot stand with the decisions of our Courts in Goodman, Kendrick, and Convery above mentioned.

I may add that the point here taken is discussed by Mr Westlake in his treatise on International Law, where the precise question is formulated as being one not fully covered by English authority (see section 200, 7th ed. p. 285). After reference to the case of Scott, the learned author discusses, by way of illustration, the question as to whether, in an English divorce for adultery committed abroad, the co-respondent could escape liability for damages on the ground that the lex loci delicti imposed no such liability. He considers that in such a case this plea might be negatived; but he adds that the damages for adultery in the case figured, "being merely an incident in the proceeding for divorce, could scarcely be drawn into precedent in support of a recovery in an independent action for an injury done abroad. It is probably the better opinion that no such independent action would lie where damages were not granted by the lex loci delicti commissi whether the parties were British subjects or not, there being no family relation that could claim the protection of British law, and no civil right acquired by the plaintiff in the primary jurisdiction." These last words are important, and express in terms the argument here presented by the defenders. It may be noted that this opinion is expressed in full view of the case of Machado, which is there referred to. The decision, as Mr Dicey notes (p. 775, note), has been questioned, and Lord Haldane in the Canadian Pacific Railway case rather carefully guarded himself from giving it approval.

I am accordingly of opinion with your Lordships that the pursuer's case, in so far as it claims solatium, is ill founded; that the defenders' plea on this head should be sustained; and that the interlocutor of the Lord Ordinary should to this extent and effect be recalled.