Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 FOREIGN.
Subject_3 Arrestment, jurisdictionis fundandæ causa, of effects, in this country, belonging to a Foreigner at the time of his death, used by another Foreigner, his creditor, whereon he brought an action of constitution and payment against the defunct's widow and daughter as his representatives, founds a jurisdiction to this Court to pronounce decree of constitution against the widow, executrix appointed in her husband's will, who, in pursuance thereof, had taken letters of administration, and, though not confirmed according to the Scots form, was maintaining actions against the debtors to the executry in this country, and likewise a party in multiplepoindings brought by them.

Messrs Ashton, Hodgson, and Company,
v.
Sarah Mackrill

Date: 16 June 1773

Click here to view a pdf copy of this documet : PDF Copy

[Fac. Coll., VI. 171; Dictionary, 7669 and 4835.]

Gardenston. The single question is as to jurisdiction. I do not think the objection solid. The effects of a stranger, debtor in this country, while he is alive, may be affected by arrestment jurisdictions fundandæ causa. The question is, Whether the same form ought not to be observed when the debtor is dead? I see no reason or authority for making a difference. The executor nominate is eadem persona cum defuncto. Sarah Mackrill has appeared in a multiplepoinding, whereby she has acknowledged the authority of this Court.

Hailes. Sarah Mackrill, as administratrix, has received powers from the Ecclesiastical Judge to act in that capacity, and has found security. She acts for Messrs Ashton and Company as much as for any other creditor; and, if there is any dividend due and payable to Messrs Ashton and Company, she must pay it. This action, therefore, is not to obtain a legal right by the law of England: that is already secured; but it tends, by a new form, to invert the order of English preferences; and this, I think, the Court ought not to encourage.

Coalston. Approved of Lord Gardenston's principles: The arrestum juris dictionis fundandæ causa, or rather explicandæ causa, may be a modern invention; yet it is founded on this plain principle, “that every Judge must have jurisdiction over every subject in his own territory.” It is the situation of the effects which gives a jurisdiction. As, during the life of Mackrill, the effects were subject to this form of diligence, so also must they after his death. Real estates, in Scotland, belonging to Englishmen, may be directly affected by diligence. Suppose the Englishman dies, is it not competent to charge his heir? It is of no consequence what this question is: we must judge between foreigner and foreigner, as between foreigner and native, or native and native. Besides, Maqkrill, by appearing in the multiplepoinding, has acknowledged the jurisdiction of this Court, and must be subject to it.

Kaimes. An Englishman, having an estate in this country, is, in effect, a Scotchman: he is the King's vassal; so no difficulty as to him, whether dead or alive. Moveable effects are liable to the jurisdiction of this Court: the arrestment is only necessary to fix the goods in the hands of the party. If the proprietor is not subject to the jurisdiction, the arrestment will not subject him; but still the goods are subject.

President. I doubt whether arrestment, by an Englishman, of goods belonging to an Englishman, is competent at all. I doubt whether this would be good although Mackrill was still alive. After Mackrill's death, the Englishman cannot take them out of the hæreditas jacens by any form hitherto known in law.

Justice-Clerk. The jurisdiction does not arise from the arrestum but from the situation of the goods. This case is singular. Here the goods, strictly speaking, have no proprietor at all: they are in hæreditate jacente: but still they are not res nullius, and the Court may have a jurisdiction to make the goods recoverable. I think that the jurisdiction can take place in so far as to allow the creditor of Mackrill to constitute his debt. This arrestum is introduced for doing justice: if it is used in order to disappoint the course of payment, according to the foreigner's own law, I should greatly hesitate.

Elliock. I have no doubt of the competency of the arrestment,: the Justice-Clerk's objection is premature.

Monboddo. The widow cannot repudiate the jurisdiction of the Court, from the necessity of the thing.

Kennet. Ashton and Company could not confirm, because their debt was not constituted. Their arrestment is in order to constitute.

On the 16th June 1773, “The Lords repelled the objection to the jurisdiction over the widow.”

Act. J. M'Laurin. Alt. A. Wight. Reporter, Monboddo.

No vote, but President, Hailes, &c. against the judgment.