Scottish Court of Session Decisions

In March, 1833, the defender Chapman, a domiciled Englishman, used arrestment jurisdictionis fundandæ causa in the hands of a Scottish debtor of the late John Cameron, who was likewise domiciled in England. Chapman and his mandatory thereupon raised action against Cameron in this Court for a sum of £861, being the balance of an account for goods supplied in England, during the years 1822 and 1823, to a company of which Cameron had been a partner. The summons, which was dated 25th March, was executed edictally against Cameron, with the usual induciæ of 60 days; and arrestment on the dependence was used in the hands of his debtor. It was called on 30th May, and a regular partibus written out against him as furth of Scotland. Appearance was made and defences lodged for Cameron by his agent, in which his liability for the debt claimed was disputed. Thereafter accounts were received of his having died at Guernsey on the 18th May, twelve days before expiry of the legal induciæ.

In 1834 a summons of transference was raised against the present pursuer, Cameron's widow, also domiciled in England, “as the executrix nominated by the will of the said John Cameron, as proved by her in the Prerogative Court of Canterbury on 6th August last, or as otherwise representing him on or other of the passive titles known in law. She had never confirmed or taken any step to represent her husband in Scotland, and no new arrestment, jurisdictionis fundaridæ causa, had been used against her. The summons was called, but no defences lodged, and the Lord Ordinary (Medwyn) on 4th March “transferred and decerned in statu quo.” On the following day, the original summons appeared in the calling lists, as transferred against Mrs Cameron, having a new partibus written on the second page applicable to her. Decreet was pronounced in absence in terms of the libel. Thereafter an action of furthcoming was raised by Chapman against Mrs Cameron and the arrestee, wherein decree ad interim was obtained against her in absence, the cause being quoad ultra continued.

Of these three several decrees of transference, constitution, and furthcoming, Mrs Cameron brought a reduction on the following grounds, inter alia: 1st, That the decree of transference was incompetent, because at its date the original summons was not in dependence, or at least was not transferable; and 2d, That the decree of transference was farther incompetent, because no jurisdiction was established by the defender (Chapman) against Mrs Cameron, who being a foreigner was not then amenable to the jurisdiction of the Court of Session; no arrestment jurisdictionis fundandæ causa having been, previous to the action, used against her, although she was then residing in England, and had not prorogated the jurisdiction of the Scottish Courts, and had then made up no title, or laid claim to any debts or effects in Scotland, which might have belonged to her husband, had he been in life; she having been moreover cited edictally, and having no knowledge of the proceedings in question.

Besides her pleas (7th, 8th, and 9th) with reference to these reasons of reduction, Mrs Cameron likewise pleaded that the original action against her husband for the account claimed was barred by the Scottish triennial prescription.

In defence against the reasons of reduction above-mentioned it was pleaded;—

1. The original action, which had been duly executed, was effectually called in Court on 30th May, 1833, notwithstanding of the previous decease of Cameron, and it was transferable against his widow and representative,

2. The action against Cameron was regularly transferred against his widow, the pursuer, and there was no necessity for an arrestment, jurisdictionis fundandæ causa, previous to raising the action of transference, the effect of that accessory action being to connect her with the deceased as his representative, and to transfer the original action as it stood, with all the grounds and warrants, and in particular with the arrestment, jurisdictionis fundandæ causa, against Cameron, on which the jurisdiction of the Court was founded.

With reference to the pursuer's plea of prescription, it was pleaded, That as the debt in question was an English debt, and Cameron was resident in England from the contraction thereof till he was cited in the action of constitution, the Scotch law of prescription did not apply to the case.

The Lord Ordinary appointed minutes of debate to be given in on the questions, 1st, “Whether the summons of transference was competent to the effect of obtaining decree of transference against Mrs Cameron, and thereafter decree in the original action, on the ground of her representing her husband, without any previous step of arrestment, jurisdictionis fundandsæ causa, or other proceeding against herself; and 2d, Whether, supposing the action of transference to have been competent without any previous proceeding, the summons and decree of transference were in this case competent and legal, under the circumstances in which the summons was raised and the decree obtained.”

For Mrs Cameron it was contended— ^*

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* There was no admission by Mrs Cameron that she represented her husband. The fact of representation was supposed in the first part of the pursuer's argument, and was assumed in the defender's argument.

1. Jurisdiction founded against a foreigner by arrestment of moveables situated in this country is entirely personal to the party against whom the diligence is used; the arrestment therefore cannot affect representatives or create any jurisdiction over them. The possession of moveable property does not per se render the proprietor subject to the jurisdiction of the Scottish courts to any intent or purpose, and a foreigner possessed of such property can be made amenable to these courts only by arrestment jurisdictionis fundandæ causa,—a proceeding limited in its nature and effects, resting on a fiction, and contrary to the common law, and which ought not to have its effects extended. ¹

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¹ Voet, 2, 4, 22; Scruton, Dec. 1, 1772 (M. 4822); Harvey v. Black, June 21, 1831 (ante, IX. 785); Erskine, 1, 2, 19.

The possession of heritable estate on the other hand is of itself a source of jurisdiction existing against the proprietor from the mere fact of possession. But a foreigner can in no case be held liable to the jurisdiction of the Scottish

Courts merely as possessor of moveable funds, arrested while the property of a party whom he represents. The fiction must be completely satisfied, and unless used against the individual it has no effect. In the case even of jurisdiction founded on the domicile of the original party, which is the proper source of jurisdiction, it is held that an action cannot be transferred against the foreign representative, without steps to found jurisdiction having been specially used against the foreigner; ¹

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¹ Reoch v. Rob, May 14, 1831, ante IX., 588.

and this applies, a fortiori, to the case of jurisdiction founded merely on arrestment. Besides, the idea of the operation of the arrestment transmitting from one party abroad to another is opposed to the principle of our law, that no party shall have action raised against him, on which diligence or decree may follow, without receiving due notice of the proceeding, and having it in his power to defend his interest. Farther, Mrs Cameron never having confirmed executrix to her husband's Scotch effects, and so not representing him in Scotland, the action of transference against her was incompetent. Even supposing her to have taken out letters of administration in England, the moveables in Scotland remain in the eye of the law in bonis defuncti until confirmation there; she having, as a foreign executor, no right of possession, and incurring no liability in regard to them. ²

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² Houston v. Stirling, Feb. 3, 1824, ante II., 672 (new ed. 564).

The present proceeding, therefore, is inept; the proper mode of proceeding against the funds of a deceased debtor, whose executors are foreigners, being to arrest, as against the executors, jurisdictionis fundandæ causa, and then raise an action concluding for decree cogni-tionis causa merely. ³

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³ Ibid. (Opinion of Court).

2. The action of transference was incompetent, the defender in the original process having died before the calling, and consequently before any judicial step had been taken, so as to make a depending process. ⁴

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⁴ Stair, IV., 3, 20–23; Ross v. Cleghorn, July 22, 1758 (M. 11,996); Bell v. Shepherd, June 27, 1812 (F.C.); Lords of the Treasury v. Campbell's Trustees, March 5, 1836, ante XIV., 657.

Besides, calling the original summons a second time, with a double partibus, was irregular and unprecedented.

Chapman, on the other hand, contended—

1. A repetition of the arrestment, jurisdictionis fundandæ causa, prior to the action of transference, would have been superfluous. The present is a case of jurisdiction ratione rei sitæ; it is the situation of the property arrested which constitutes the jurisdiction of the judge, the arrestment (notwithstanding its name), supposing the jurisdiction already founded. Admitting the rule of law that moveables follow the person, it is to dissever this legal connexion between the person of the debtor and the effects, and by fixing the goods within the judge's territory, to give assurance

that his decreet will not be nugatory, that the proceeding of arrestment, jurisdictionis fundandæ causa, has been had recourse to. ¹

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¹ Kaimes' Law Tracts, p. 268; and Elucidations, p. 143; Ashton v. Mackill, June 16, 1773; Hailes, 526; Feme v. Woodward, June SO, 1831, ante IX., 854 (Opinion of consulted Judges).

This view, that arrestment is only required for fixing the goods in the country, is borne out by the cases where it has been held that the dependence of a process of multiplepoinding, in regard to the funds of a foreigner, rendered it unnecessary to use an arrestment, jurisdictionis fundandæ causa, previous to an action of constitution by a creditor; ²

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² Douglas, Heron, and Co., v. Palmer, Jan. 29, 1777; Hailes, 748; Mansfield v. Smith, June 17, 1795.

and also by the case of a foreign defender, whose goods are arrested, appearing and finding caution judicio sisti, when, if the goods are removed from the country, and the original party dies, the pursuer of the action would be entitled to transfer it against the representatives abroad, to the effect of proceeding afterwards against the cautioner. ³

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³ Dundas v. M'Leod, Dec. 13, 1743 (M. 2038).

But if the only object of an arrestment is to prevent the removal of the goods with the view of defeating the creditor's action, there is obviously no reason for its exposing, on the death of the defender, or for a renewal of it against his representatives. The effect of an arrestment, once used, is to establish a permanent jurisdiction over the goods till sentence, in relation both to the defender and his representatives; and the jurisdiction comes to be of the nature of jurisdiction in respect of the possession of heritable property, being rather of a real than of a personal character, the defender being called, not because he was personally subject to the Courts here, but as receiving notice for his interest in the goods. From all which it follows, that no second arrestment, jurisdictionis fundandæ causa, was necessary, in order to the valid transference of the action in question. The opposite doctrine leads plainly to false and unjust consequences, viz., that no diligence against a foreigner, used on the dependence, can have any effect upon his death, and that every action against a foreigner having effects here must fall entirely upon the death of the original defender; for if the arrestment loses all efficacy upon his death, the whole proceeding, having no foundation but the arrestment, must fall to the ground along with it. In regard to the matter of representation, assuming that no new arrestment was necessary, and that Mrs Cameron was the English executrix of her husband, she is under the same obligation to account as a Scottish executor, or as her husband would have been to the extent of the funds left by the deceased. The special fund in Scotland, although she has not made up a title to it, by confirmation, is actually vested in her, so that she is the only party who has any interest in the fund, though her interest is subject to the arrestment used. In relation to that interest, therefore, as well as in the general character of executrix, she is the proper representative of her husband, and as such has been properly called as defender in the present proceedings.

2. The original action having been executed against the defender, Cameron, became thereby a depending process, and as such was transferable against his representative, although not called prior to his death. ¹

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¹ M'Intosh v. Macandrew, May 26, 1829, ante VII., 649; Dallas's Styles, p. 64; Bell's Forms and Juridical Styles, as to Inhibition and Arrestment “on the dependence;” Stair, IV., 38, 1 and 2; Erskine, III., 6, 3.

The Lord Ordinary (December 13, 1836) pronounced the following Interlocutor, with the note subjoined:—

“Finds that the original action at the instance of the defender against the deceased John Cameron was transferred in sufficient legal form against the present pursuer, as his representative, by the decree of transference under reduction; and to this effect, but no farther, repels the 7th, 8th, and 9th pleas in law for the pursuers: And before further answer, appoints the cause to be enrolled, in order that the questions involved in the other pleas for the parties, which depend upon the law of England as matter of fact, may be put into a proper course of investigation; and, in the mean-time, reserves all questions of expenses.” ^*

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* “Though the Lord Ordinary has come to the opinion expressed in the interlocutor, he has had considerable doubt on both the questions discussed in the minutes. He cannot adopt the principles laid down in the minute for the defenders, so as to hold that this Court has jurisdiction over foreigners, simply in respect of their having moveable effects situated in Scotland. The courts of Scotland no doubt have power over such goods; but the question of legal jurisdiction is a question juris gentium; and, according to all modern authorities, moveable effects follow the domicil of the owner, and have no legal situs but in the country of that domicil. Authorities to the contrary may no doubt be easily cited; because, at one time, and until a comparatively late period, a contrary principle was not only maintained by lawyers, but acted on in the decisions of the Court, and even of the House of Lords. But the true principle of law has been long settled, and therefore the Lord Ordinary cannot hold that the only use of the arrestment jurisdictionis fundandæ causa is to prevent the goods from being removed from the country, as if the Court had in other respects jurisdiction to administer law on personal estate between two parties domiciled under the law of a foreign country. He has no doubt that that form of process, in its nature altogether artificial, has been introduced, or at any rate can only be sustained, on views of equity as indispensable to the creation of jurisdiction in such a case.

“But having expressed this opinion in point of principle, he has still come to the opinion that where the jurisdiction has once been legally founded by such an arrestment, and a summons issued and executed in virtue of it, such jurisdiction does not perish by the death of the party, but may be transferred without any other proceeding against his representatives, though also domiciled abroad. The consideration which has raised most difficulty in his mind on this point is, that the party against whom such an action of transference is brought may deny the representation, and that the discussion of that question must then come to be a personal litigation with a party against whom personally no jurisdiction has been founded. It does not appear to the Lord Ordinary that the question has ever been settled by any decision, though several of the cases quoted by the parties have more or less bearing on it. Neither is he satisfied of a point strongly assumed by the defenders, that the decree to be obtained in the principal action will be of no effect beyond the value of the effects arrested. No doubt, if it turns out that there were no goods, the whole proceeding will be a nullity for want of jurisdiction. But if there were goods sufficient to give jurisdiction, and if the party so called comes into Court upon a summons, which always contains personal conclusions, and so is compelled to discuss the merits of whatever question may be between the parties, it will be matter of international law for the judgment of foreign courts, whether such a decree shall not be taken as res judicata to be enforced by the diligence of their own law.

“Nevertheless, the Lord Ordinary thinks that the difficulties on the other side are greater. A party who has used a good arrestment to found jurisdiction, and then raised his action and arrested for security on the dependence, has thereby jus quæsitum in the goods arrested, if his claim by the summons is good. The Lord Ordinary does not think the reasoning solid, that if a new arrestment to found jurisdiction were necessary before the action could be transferred, the arrestment in security must necessarily be lost; because it might reasonably be held, that when the action was transferred, the arrestment would subsist along with it. But the consequence would follow in many cases, because there might be nothing to arrest to found jurisdiction a second time; and, according to the case of Houston, such an arrestment to found jurisdiction with effect, would he incompetent against an executor unconfirmed, and the process recommended in that case would not at all answer the purpose of preserving the original arrestment in security. The Lord Ordinary cannot think that this result would be consistent with the principles of law; and, seeing that, as far as appears, there has been no practice of using a new arrestment to found jurisdiction in such cases, he thinks that it is on the whole more sound in principle, and practically safer, to hold that the transference may proceed without it. Though there is no decision on the point, it certainly appears, according to Kilkerran's Reports, to have been taken for granted in Dun-das v. M'Leod, 13th December 1743, M. 2038.

“The Lord Ordinary has had difficulty in the second point also; and he must observe, that the defender by taking too narrow a construction of the interlocutor ordering the minutes, has not argued the point which creates most doubt in the Lord Ordinary's mind. One question is, whether it was competent to transfer an action as a depending process, when the summons had not been called in Court in the lifetime of the original defender cited. But for the decision in the case of Macintosh, May 26, 1829, the Lord Ordinary would have great doubt on that question, as Lord Corehouse by reporting it appears to have had: For though arrestment is competent on an executed summons as a depending action, it goes for nothing if the action be not proceeded in; and it does not necessarily follow, that if the party dies before it is called, it can be legally called against another party. The judgment, however, in that case may be taken as so far settling the point for the guidance of a Lord Ordinary. But in the present case, a different question arises. Here the summons was in fact called in Court,—enrolled,—an order for defences taken, and farther orders made. And the question, whether the decree of transference taken was legal and competent under the circumstances in which the summons was raised, and the decreet obtained, involves the question, not discussed, whether it was legal and competent, after the proceedings adopted on the original summons. The material point is, whether the transference could be taken on the action, as depending against a man who was dead before it was called, to the effect of enabling the pursuer of it to call the summons anew by a new partibus, directing it against another party, the representative. The Lord Ordinary must confess that he does not consider such an extraordinary proceeding, which makes the record of the Court so anomalous, as a very simple case. But on the whole, if the case of Macintosh be hold to be conclusive, he is inclined to think that the point decided by it necessarily involves the competency of some such extraordinary and irregular form of process.”

In explanation of this interlocutor, and with reference to the plea as to the Scottish triennial prescription, his Lordship (December, 24, 1836) farther pronounced as follows:—

“Finds that by the finding of the said interlocutor, that the original action against John Cameron was in sufficient legal form transferred against the present pursuer as his representative, and to that effect, but no farther, repelling the particular pleas mentioned, no judgment was intended to be given, or is given, as to the legal effect of such a decree of transference, or of the decree in the original action obtained under it, as it may affect the said pursuer; and in particular, no determination was intended to be, or is given, to the effect that the pursuer may be made liable to account in this Court, or under the decree pronounced by it, for her administration of the estate of the said John Cameron under the authority of the Courts of England; all questions touching these matters being entirely open: Finds that the triennial prescription established by the Scotch statute, 1579, c. 83, cannot in the circumstances be pleaded in bar of the defender's action against his alleged debtor John Cameron: Finds, therefore, that it is unnecessary to pronounce any judgment on the question, whether such triennial prescription, if pleadable, would be elided or interrupted under the law of Scotland by the facts alleged for that effect by the defender: Finds that the other pleas maintained by the pursuer as grounds for setting aside the decree under reduction, and as defences against the original action, and the counter pleas maintained by the present defender, either directly depend on matters of the law of England, or resolve into questions of fact which may be materially affected by that law, of which, as matter of fact, evidence must be brought before this Court in some competent form: Therefore, before farther answer, appoints the cause to be enrolled, in order that the course of proceeding may be determined; and reserves all questions of expenses.” ^*

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* Note.—“The Lord Ordinary certainly had no intention, in the face of the cases of M'Master, Brown's Trustees, and other cases, of pronouncing any judgment which should imply that the pursuer could be required to ‘account here for her administration as executrix in England; and he did intend very deliberately to waive every question as to the effect of the decree when obtained in virtue of the arrestment for founding jurisdiction. But it may be very right that this should be precisely explained, lest there should be any misapprehension, notwithstanding the guarded terms of his interlocutor; and he has explained it accordingly.

“The question, whether the triennial prescription applies in this very peculiar case, is new and important, and not free from difficulty. The Lord Ordinary so far goes along with the argument of the pursuer, that he cannot hold the question to be regulated by the lex loci contractus. Certainly there is a series of decisions by which the triennial prescription has been held to bar action on contracts in all respects English. Thomson v. E. of Linlithgow, July 16, 1708, M. 4504: Randal v. lnnes, July 13, 1758, M. 4520; Kerr v. Earl of Home, February 20, 1771, M. 4522; Barret v. Earl of Home, February 4, 1772, M. 4524; Campbell v. Stain, May 26, 1813, House of Lords, June 5, 1818; Broughton v. Western, February 24, 1826. ¹

The Lord Ordinary is also of opinion, that so far as these decisions go, they are well founded in the principles of international law, as they are explained by the best general writers on the subject. These appear to the Lord Ordinary to be well digested in Professor Story's late work on the Conflict of Laws, p. 482 to 490, where the view taken by the learned author seems to him to be in general sound and just. The principle coincides with that laid down by Lord Kaimes in his Principles of Equity, p. 285, 8vo edit., and with what Lord Eskgrove said in an able speech in the case of of Delvalle v. York Buildings Company, as reported by Lord Hailes, p. 926, as well as with the doctrine of the decisions above quoted. Nevertheless it is proper that the Lord Ordinary should refer to a very late case, not alluded to in the debate, in which, if he fully understands the bearing of it, being somewhat of a special nature, a different principle seems to have received the sanction of very high authority; Lippman., &c. v. Don, January 20, 1836. He understands that case to be under appeal. ²

“But assuming the principle that the lex loci contractus, whatever may be the locus solutionis, will not determine the question whether, where execution by action or diligence is sought under the laws of another state, a statutory prescription of that law will bar the process, or limit the mode of proof, that principle will not solve the present case. In all the cases above cited, and indeed in most of the reasonings on the subject, it is assumed that the debtor has a legal domicile in the place where the remedy is demanded, and is within the full operation of the lex fori. The case has never been supposed, of jurisdiction founded by the artificial form of arrestment, where both the parties continue to have their residence in the locus contractus; and it seems to be by the combination of the domicile of the debtor with the forum of that domicile necessarily taken by the creditor, that the rule as to the application of prescription has been obtained. The case, indeed, of jurisdiction sustained in respect of heritable properly, where the debtor has not his proper domicile in Scotland, has occurred; and in the case of Delvalle above mentioned, July 30, 1783–86, Lord Eskgrove, and other Judges, held and decided that the Scotch prescription of forty years must be applied. That judgment was reversed by the House of Lords ex parte. But the Lord Ordinary sees by the appeal case that the creditors had ceased to have any interest, and that the Company of York Buildings itself could have none to maintain the plea, because they were clearly liable for the debt in their own domicile, England. The point, however, is at the least neutralized by the reversal; and the Lord Ordinary is not aware of any other case in which it has been tried. Besides, it related to the long prescription, which is governed by different principles from the triennial.

“But in the case of jurisdiction by domicile, the Court has required something more than the mere existence of the domicile, however clear, to admit the defence of triennial prescription. Erskine has laid it down expressly, that there must be residence, or a domicile in Scotland, for three years preceding the action, E. 3, 7, 48. Kaimes holds the same; and there have been repeated decisions to that effect. It is enough to refer to Boog v. Watt's Creditors, December 11, 1800. The Lord Ordinary must therefore hold the point as settled: And ho thinks that there is great reason in it. For, as the triennial prescription does not import an extinction of the debt, or oven an incompetency in the action, but only a limitation in the mode of proof, the presumptio juris of payment on which it proceeds can hardly have any place, where the debtor has not been within the operation of the law, and subject to the Courts of Scotland, during the whole period of three years; and, as a matter of equity, it would not be just towards a creditor, who made his contract in England, and saw his debtor still resident in his own forum, and the right of action not affected by any such limitation, to hold that he might be brought under it by a change of domicile, without residence in the new forum for the statutory period.

“The Lord Ordinary is therefore of opinion that a domicile in Scotland is essential to the plea, and that that domicile must have subsisted for three years. And it is on this ground that he decides against it in the present case, because the jurisdiction founded by arrestment cannot be taken as equivalent to domicile at all; and though it could be so taken, it could go no farther than a domicile acquired de recenti, without having subsisted during three years.

“The circumstance which creates the greatest peculiarity in this case, and gives some show of equity to the pursuer's plea, is, that here the defender wilfully leaves the forum of his debtor's domicile, where he may sue him if he pleases, and, aiming at some undue advantage, asks, by means of an artificial process, execution in a foreign jurisdiction. In the case of a change of domicile, the creditor has no choice but to follow his debtor. But here he declines the forum contractus et domicilii, to ask the aid of a foreign law, although, by the showing of the actions, his debtor is not insolvent, and there is no competition. And it must be confessed that a party so proceeding has not the same equity to plead as in the other case; and that he could hardly complain of injustice if he were required to take the whole of that law, in respect of execution, as he finds it. But still the Lord Ordinary is not able to find principle or authority for making the distinction.

“The remaining points of the cause, viz. any question as to the constitution of the debt,—the plea on the statute of limitations, and the question whether it is barred by circumstances,—the plea on the discharge of the commission of bankruptcy—and every thing else involved in the pleas in law—evidently depend either on the law of England, or on other matters of fact combined with it, which must be the subject of proof. It will be matter for consideration, whether the law of England shall be ascertained by opinions taken by order of the Court, or whether the whole case shall be sent to a jury, leaving it to the parties to prove the state of the law of England habili modo in the trial.”

¹ Ante, IV. 496 (new ed. 501).

² Reversed, May 26, 1837 (2 S. & M. 862).