Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 FORUM COMPETENS.

Messrs Douglas, Heron and Co.
v.
Charleton Palmer

1776, November 21,and 1777, January 29.

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[Supp. V. 449.]

Covington. I understand the letters to have authorised arrestment in general; and arrestment at the market-cross is a known form. But I doubt how far such arrestments are good against persons who are not within the jurisdiction of the Court. So found in the case of Couts,—Dict. vol. I, p. 330. Thus, an arrestment in the hands of a person without the jurisdiction of the Sheriff, will have no effect in an action before the Sheriff. The multiplepoinding brought by the Sun Fire Office may remove the objection as to want of jurisdiction, but it will not have the effect of making the one arrestment preferable to the other.

Monboddo. If a person has not a forum, his goods cannot be arrested; but I observe that the Sun Fire Office has an agent in Scotland, receives payment of premiums there, and probably has debts due there. The question is, Whether such a society, though established in England, may not, by having an office here, be amenable to our jurisdiction? I think they are, and so they understood it, by bringing the multiplepoinding.

Alva. When there is a company matter carried on in Scotland, I think that a jurisdiction lies in Scotland.

Kaimes. An arrestment is merely the command of a private person, when the arrestee has no forum. The only question is, Whether has the Sun Fire Office a forum? The having goods in a country will not, eo ipso, subject a man to the jurisdiction of that country. This is the case of every foreign merchant: the only way to establish the jurisdiction would have been, by an arrestment jurisdictionis fundandæ causa.

President. If the arrestment is competent, the warrant may be sustained. But the Sun Fire Office has no forum in Scotland: the premiums are discharged at London. A power of uplifting debts, given to Allan, their agent, will not make arrestments in his hands effectual, as if he were a debtor himself. If this is so, the arrestments at pier and shore are good for nothing. The multiplepoinding may remove the objection as to jurisdiction, but it will not have the consequence of preferring one arrestment to the other.

Gardenston. By an arrestment jurisdictionis fundandæ causa, the subject comes to have a situs: this form, however, was omitted here. But, as the Sun Fire Office brought the money into Court, we may divide it.

On the 21st November 1776, “The Lords found the arrestments void and null; but, in respect of the multiplepoinding brought by the Sun Fire Office, they found that the sum in question is brought within the jurisdiction of the Court; and, therefore, that the arresters are to be preferred pari passu, according to their interests, and remitted to the Ordinary to proceed accordingly;” altering Lord Auchinleck's interlocutor.

Act. A. Wight. Alt. A. Murray.

1777. January 29. Kaimes. I am of the opinion of the former interlocutor: all the arrestments are good for nothing.

Covington. Neither of the parties had a right to what the Court gave them. The company, even by bringing the multiplepoinding, did not subject itself to our jurisdiction: an objection against jurisdiction is still entire. I think that the company had a forum wherever it set up an office. The subject in dispute is money decreed to be paid here for a loss sustained in this country. I do not think that the decreet against Allan can make any variation. This is like the late case of Mr Robert M'Intosh, where he was found to be only liable that his brother should take burden. Allen took burden: and the Company has agreed to be bound. I think that the two arrestments are equivalent. In the one, Allan is designed factor, but that does not imply that the arrestment is laid in his hands merely qua factor; it applies to him as debtor quocunque nomine. In the other, the arrester, being better acquainted with the factor, used more accurate words.

Kaimes. The debt is the debt of the Company, not of Allan: if they bring a multiplepoinding they must pay.

Gardenston. The Sun Fire Office has a forum wherever it has a taberna. This is not the case of a merchant who has accidental dealings in a foreign country.

Hailes. Were this forum sustained the consequences would be very extensive indeed. At Leith there is a Dutch and a Danish consul, and such consuls are agents for many foreign merchants: will that circumstance bring the Dutch and the Danes under our jurisdiction? As to the arrestments in the hands of Allan, I do not see how they can carry any thing, for the multiplepoinding mentions Allan in the single character of factor for the Company; and the forthcoming concludes against him as factor and manager, not as debtor proprio nomine.

Braxfield. If this office did not exist in Scotland, the Sun Fire Company would have no forum here. Let us see whether the having such an office in Scotland can make any difference. For the ease of people contracting, they have an agent in Scotland, but he cannot so much as sign a policy or settle a loss: this is not sufficient to create a forum. I do not think that a jurisdiction, ratione contractus, is good, unless the person of the debtor can be apprehended. If so, it would be still stronger to create a jurisdiction where the contract is actually entered into in a foreign country. I also doubt as to the arrestments used in the hands of Allan: he takes burden for the Company; but he is not debtor. Even supposing he meant to be debtor, still the manner of making the debt effectual is a different thing. Although Allan could be attached, still the debt is the debt of the Company, and he is no more than cautioner; and arrestment in the hands of a cautioner would not be good.

Justice-Clerk. We all know that this Company is an English Company. The partners may carry on their business all over Europe, but their only domicile is at London. Allan neither is, nor, by the charter, can he be authorized to grant policies or to adjust losses. It is quite a different thing when a man has a tavern or a shop in a foreign country, for there the institor binds his constituent. I am equally clear that Allan, being decreed to pay a specific sum of money, is a proper subject in whose hands arrestment may be lodged and forthcoming pursued. The two executions, however different in form, are tant-amount as to their effect.

On the 29th January 1777, “The Lords found that the arestments in the hands of Allan are effectual;” varying their interlocutor of ——.

Act. A. Wight. Alt. Solicitor Murray.

Diss. Kennet, Stonefield, Hailes, Braxfield.

The Lords repelled the whole other objections, and remitted to the Ordinary.