Scottish Court of Session Decisions

The Lord Ordinary ( Barcaple) sustained the plea of the defender, and dismissed the action, adding the following note to his interlocutor:—

“The sole ground on which it is alleged that there is jurisdiction against the defender, who is domiciled and resident in England, is, that he has been decerned executor-dative qua next of kin of Francis Garbett. He has not given up an inventory, or been confirmed executor. Jurisdiction has not been constituted against him by arrestment, and it is not alleged that there are any funds in Scotland belonging to him, either as an individual or as. executor; the action is for an ordinary debt, alleged to have been owing by Francis Garbett, at his death. In this state of the facts, the Lord Ordinary does not think that any of the recognised grounds for sustaining jurisdiction against a foreign defender can be held to exist in the case.

The defender, before he was decerned executor, had obtained letters of administration in England. The Lord Ordinary does not doubt that if jurisdiction were constituted against him in the ordinary way, he might be sued in this Court for payment of Garbett's debt, as executor, and administrator in respect of his having taken up the estate in England, Morrison v. Kerr, M. 4601; Munro v. Graham, 1 D., 1151. In like manner, the Lord Ordinary must hold that, if the defender has realised executry funds under the title which he obtained in Scotland, which he has carried away, or which never were here, he might be sued in the English Courts independently of his obligation to account there for his administration under his English title. Any other rule would enable an executor to escape from all liability by leaving the jurisdiction in which he has confirmed and administered, and taking the funds with him.

This is no violation of the principle fixed by the House of Lords in the case of Preston v. Melville, 2 Rob. App., 88, that ‘the domicile regulates the right of succession, but the administration must be in the country in which possession is taken and held, under lawful authority, of the property of the deceased.’ There is no question in the present, or any similar case, as there was in Preston v. Melville, as to the right and duty to administer. In the case of Munro v. Graham, above quoted, this was well illustrated. While the Court there sustained the jurisdiction, and was prepared, if necessary, to go on to dispose of the case, and decern against the executor, the action was sisted to abide the issue of an administration suit in the Court of Chancery as the primary and appropriate judicature, if an effectual decree could be obtained there

If there had been funds in Scotland carried by the defender's decree-dative, the pursuer's proper course would have been to arrest them jurisdictionis fundandœ causa. There are no such funds here now, and the Lord Ordinary greatly doubts whether it can be maintained that there ever were any in Scotland, at or after the date of the defender's decree-dative. A number of Carron Company shares which had belonged to Francis Garbett were confirmed to by an executor-creditor of Garbett, who sold them to Mr Stainton in 1817. The defender, as executor of Garbett, and holding letters of administration in England, took proceedings in Chancery against Stainton, on the ground that the sale had been brought about by his fraud, in which he sought to have the sale set aside, or for other remedy. After these proceedings had commenced, and, apparently, in aid of the defender's title to pursue them, he got himself decerned executor in Scotland. He afterwards compromised the Chancery suit by taking payment from Stainton of the sum of £60,000. The pursuer contends that the

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