Corporation of Glasgow v Johnston
| Jurisdiction | Scotland |
| Judgment Date | 27 February 1915 |
| Docket Number | No. 67. |
| Date | 27 February 1915 |
| Court | Court of Session |
Lord Dewar, Lord President, Lord Dundas, Lord Mackenzie.
Jurisdiction—Domicile—Reparation—Domiciled Scotsman absent abroad sued in respect of delict committed in Scotland—Process—Citation—No personal citation.
In an action in the Court of Session, based upon the alleged fault of the defender in negligently driving a motor car in the neighbourhood of Glasgow, the defender pleaded ‘no jurisdiction.’
At the date of the raising of the action the defender was abroad, and the summons was not served upon him personally, but edictally, and also by registered letter at an address in Scotland used by him for the receipt of letters and for the registration of his car. The defender's domicile of origin was Scottish, and his permanent residence had been in Scotland until about a month before the raising of the action, when he left Scotland for Canada. At the date of the action he had not lost his domicile of origin or acquired a domicile elsewhere, and he had nowhere a fixed place of residence, and owned no heritable property in Scotland.
Held that, in the circumstances of the case, the defender was subject to the jurisdiction of the Court.
On 6th December 1913 the Corporation of the City of Glasgow brought an action against Harold Bruce Johnston, designed as ‘of The Pass, Callander, presently furth of Scotland,’ in which they sought to be relieved by the defender of their liability under an award of compensation under the Workmen's Compensation Act, 1906, obtained by one of their employees in respect of injuries sustained by him in a collision near Glasgow between a Corporation cart which he was driving and a motor car driven by the defender. The pursuers claimed to be indemnified on the ground that the accident was due to the fault of the defender.
The summons was served upon the defender edictally, and also by registered letter sent to The Pass, Callander.
The defender pleaded, inter alia;—(1) No jurisdiction.
A proof was allowed of the defender's averments in support of this plea, and of the pursuers' answers thereto, and the facts proved were narrated by the Lord Ordinary as follows:—‘The defender, who is thirty-two years of age, is a domiciled Scotsman, and at the time of the accident resided in Glasgow. He is a son of the late Henry Buist Johnston, stockbroker, Glasgow, who died in 1907. The late Mr Johnston was proprietor of, and resided at “The Pass,” Callander, and the defender and his mother continued to reside there until 1910, when the place was let to a yearly tenant. From 1910 till May 1913 the defender was employed in Glasgow, and resided there. He then went to London. He returned to Scotland in September, and remained in an hotel at Callander till November. This action was raised in December—the summons being signeted on 6th December 1913—but by that time the defender was on his way to Canada. He remained in Canada till January 1914, when he returned to London. He again visited Canada, and came back to London in June 1914. He is there still. Since he left Scotland he has lived in various hotels and boarding-houses, but had never any fixed residence. He used “The Pass,” Callander, as his permanent address. His letters are sent there and forwarded by the Callander postmaster. He gave this address for the registration of his motor car. He is entered on the Valuation-roll as joint owner and occupier. He explains in evidence that this was a mistake, but he admits that he has exercised the franchise in respect of it. He is in receipt of an income of £80 a-year from his father's estate, which is administered in Scotland. He is one of the trustees under his father's trust-disposition and settlement. By that deed thetestator left his widow the liferent use and occupancy of “The Pass,” with furnishings and fittings, and an annuity of £80 to the defender. The widow enjoys the liferent use of the residue of the estate, amounting to about £12,500, and on her death it falls to be paid over to the defender in the event of his surviving his mother. If he should predecease her, without leaving issue, the residue goes to her. The defender and his mother, who is also a trustee, manage the trust-estate. The whole income goes to the mother, and she arranges with her son as to his annuity. The defender states on record that he has no claim for any part of this annuity in respect that there are trust funds in his hands in excess of any sum due to him. It appears from the trust accounts that he has at the present time about £500 of trust money in his hands not yet invested in name of the trustees.’
On 17th November 1914 the Lord Ordinary (Dewar) pronounced an interlocutor repelling the first plea in law for the defender, continuing the cause, and granting leave to reclaim.*
The defender reclaimed, and the case was heard before the First Division (consisting of the Lord President, Lord Dundas, and Lord Mackenzie) on 17th February 1915.
Argued for the reclaimer;—The Court had no jurisdiction over the defender. The defender had lost his Scottish domicile of origin; but even if he had not it was immaterial, because domicile in the ordinary sense as meaning the place where a man had his permanent abode, i.e., domicile for the purposes of succession, was not a relevant consideration in a question of jurisdiction. For purposes of jurisdiction domicile meant a sufficient actual residence in Scotland prior to the date of the action, viz., forty days' residence in `Scotland prior to citation.1 Here the defender had not acquired the necessary forensic domicile. Even, however, if domicile in its wider meaning was an element to be taken into consideration in a
case founded on delict, it was not per se sufficient, but only sufficient `in conjunction with personal citation of the defender in Scotland, or at least with the presence of the defender in Scotland at the time of the service of the summons.1 Neither of these elements was present here. The old case of Anderson v. Hodgson and OrmistonUNK2 did not truly conflict with this view, and in any event it had been overruled.3 The statutory provisions for modes of citation alternative to personal service did not obviate the necessity for personal citation in questions of jurisdiction.4 Edictal citation, which was appropriate in the case of a defender against whom jurisdiction existed but who had left his usual place of residence,5 was of no effect where there was no jurisdiction.6 The defender's appearance for the purpose of maintaining that he was not subject to the jurisdiction of the Court did not subject him to that jurisdiction. [The reclaimer also submitted an argument against a contention of the respondents that under the settlement of the late Mr Johnston he was owner of heritable estate in Scotland, and that jurisdiction was thus founded.]
Argued for the respondents;—The defender was subject to the jurisdiction of the Court, being a domiciled Scotsman sued, in respect of a delict committed in Scotland, in the Courts of his own country to which he had been properly convened.7 The manner in which he was convened was, however, immaterial; Scots domicile, combined with locus delicti in Scotland, being per se sufficient. Personal citation at any rate was not necessary. Citation by registered letter at the address which the defender used for the registration of his motor car was sufficient, the use of an address for such a purpose being equivalent to an undertaking to answer in the
proper Court any question which might arise in connection with `the car.1 If any objection were taken to that citation on the ground that the address was not his residence, then the edictal citation was sufficient, for it was perfectly clear that he had acquired no other residence. The requisites for founding jurisdiction were different in actions turning upon contract and in actions turning upon delict. In questions of delict the coercive jurisdiction of the Court to remedy wrongs committed within its territory was complete, if its decree could be enforced against the person or property of the defender within the territory, or if the defender were effectually cited in a manner which the Court recognised as valid. The principle of the common law applicable in the Court of Session was adopted and set forth in the Sheriff Court Act of 1907.2 The question of citation was not, however, of moment in the present case, because the defender, having appeared, could not be heard to plead that for the purpose of jurisdiction he had not been validly cited. He was in fact present in Court, and it was useless for him to say that he had not been properly summoned. Independently, the entry of the defender's name in the Valuation-roll, in respect of which he had exercised the franchise, was sufficient of itself to subject him to the jurisdiction of the Court.3 [The respondents also argued that under the settlement of the late Mr Johnston the defender was owner of heritage in Scotland, and that jurisdiction was thus founded.]
At advising on 27th February 1915,—
Lord President.—The sole question before us here is whether the defender is amenable to the jurisdiction of this Court. I am of opinion that he is, on the ground that he is a native of Scotland duly convened to answer, in the Supreme Court of his own country, to a claim for delict or quasi-delict committed by him in Scotland. The action has, I think rightly, been treated on both sides of the bar as one for damages in which the claim against the defender rests...
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...for citation at the place of business within the sheriffdom): M'Bey v. KnightSC, (1879) 7 R. 255, and Corporation of Glasgow v. Johnston, 1915 S. C. 555 (opinion of Lord Mackenzie, at p. 565, to the effect that the antecedent to valid citation is that the Court has jurisdiction to issue the......
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