Tasker v Grieve
| Jurisdiction | Scotland |
| Judgment Date | 02 November 1905 |
| Docket Number | No. 7. |
| Date | 02 November 1905 |
| Court | Court of Session |
Lord Low, Lord Kyllachy, Lord Justice-Clerk, Lord Stormonth-Darling, Lord Kincairney.
Jurisdiction—Domicile—Loss of domicile of origin.—
Evidence on a consideration of which it was held (aff. the judgment of Lord Low) that A, whose domicile of origin was in Scotland, and who had until in 1895 been a partner in a firm in Greenock, with a branch in Newfoundland—of which branch A had from 1872 been the managing partner—had, nevertheless, by 1904 abandoned his domicile in Scotland and acquired a domicile in Newfoundland.
Jurisdiction—Residence in Scotland—Residence in Scotland for less than forty days by person who had abandoned a Scots domicile of origin.—
Residence in Scotland for less than forty days by a person whose domicile of origin was in Scotland, but who has abandoned that domicile, coupled with personal service in Scotland, does not subject that person to the jurisdiction of the Scots Courts.
Question whether the possession of a Scots domicile of succession, coupled with personal service in Scotland, would subject the person so domiciled to the jurisdiction of the Scots Courts in a petitory action with reference to property abroad, if the person has not had a residence in Scotland for the forty days immediately preceding the service of the summons.
By summons signeted on 27th June 1904 Mrs Marion Jack Tasker, 40 Union Street, Greenock, raised an action against Walter Baine Grieve, designed as ‘of St John's, Newfoundland, merchant and shipowner, residing at 70 Bruntsfield Place, Edinburgh,’ concluding for decree ordaining the defender ‘to make payment to the pursuer of the sum of £3466, 8s. sterling, being the equivalent in sterling money of $17,332, 14c. in the currency of the Island of Newfoundland, being the balance due by the defender to the pursuer under a final decree for the sum of $22,295, 6c., obtained by the pursuer against the defender in the Supreme Court of Newfoundland entered on the 7th April 1898, with interest.’ The sum alleged to be due arose out of the sale of certain heritable property in Newfoundland belonging to the pursuer, for whom the defender acted under a power of attorney granted by the pursuer.
The defender pleaded, inter alia;—(1) No jurisdiction.
With reference to this plea the pursuer averred;—‘The defender's domicile of origin is Scottish, and, notwithstanding frequent visits to his place of business in Newfoundland, he has never abandoned that domicile. Further, the defender is subject to the jurisdiction of the Scottish Courts in respect that prior to the personal service upon him of the summons in the present action at 70 Bruntsfield Place, Edinburgh, on 1st July 1904, he had resided continuously in Scotland for a period of over forty days.’
The defender in answer denied that his domicile was in Scotland, and further denied that on 1st July 1904, when the summons was served on him, he had resided in Scotland continuously for forty days.
A proof was allowed and led on the question of jurisdiction.
The evidence was to the following effect:—It was not disputed that the defender's domicile of origin was in Scotland although he was born in Newfoundland. He was born in April 1850 at St John's, Newfoundland, where his father was then resident. His father, Mr James Johnston Grieve, was a partner of the firm of Baine & Johnston, merchants, Greenock, and also of the firm Baine, Johnston, & Company, merchants, Newfoundland, which was a branch of the Greenock firm. Mr Grieve senior had gone to Newfoundland about the year 1848 on the business of his firms, and he remained there until 1855, but during that period he returned to Greenock for a short time in 1849 in order to accept office as Provost of the burgh. Mr Grieve senior never went back to Newfoundland after his return to Greenock in 1855. He had resigned the office of Provost to which he had been elected in 1849, but after his return he was re-elected Town Councillor in 1856, and he was Provost from 1860 to 1868. He was Member of Parliament for the burgh from 1868 to 1878. He died at Peebles in 1891.
The defender accompanied his father on his return to Greenock in 1855. After completing his education at schools in Greenock and in St Andrews and at Glasgow University, the defender in 1868 entered business as a clerk in the office of Baine & Johnston in Greenock. In 1870 he went to Newfoundland, at first as a clerk in the office of Baine, Johnston, & Company, Newfoundland, but in 1872 he became a partner of that firm, and succeeded his brother in its management. He also became a partner in Baine & Johnston of Greenock.
From 1872 to 1895 the defender remained in Newfoundland in the management of Baine, Johnston, & Company of Newfoundland, but he was in the habit of visiting Scotland practically every year. He was married at Gateshead-on-Tyne in April 1880. He sent his children—a son...
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