Union Electric Company, Ltd, v Holman & Company
| Jurisdiction | Scotland |
| Judgment Date | 05 June 1913 |
| Date | 05 June 1913 |
| Docket Number | No. 131. |
| Court | Court of Session |
Lord President, Lord Kinnear, Lord Johnston, Lord Mackenzie.
JurisdictionArrestmentArrestment jurisdictionis fundand causaAction for delivery of goods in terms of contract and failing delivery for damagesForeignContract.
Held that jurisdiction in an action concluding for delivery of goods in terms of a contract between the parties, and failing delivery for damages was competently founded by arrestments ad fundandam jurisdictionem.
On 9th January 1913 the Union Electric Company, Limited, Glasgow, brought an action in the Sheriff Court at Glasgow against Holman & Company, suppliers of dynamos, arc-lights, carbons, &c., who carried on business at Southwark, London, E.C. The action was founded upon an alleged breach by the defenders of a contract in terms of which they were bound to supply to the pursuers 30,000 pairs of carbons.
In the initial writ the pursuers craved the Court to ordain the defenders to deliver to the pursuers 30,000 pairs Excello yellow flame carbons 600 m/m by 10 m/m and 9 m/m in terms of the said contract between the parties, and that within such short space of time as the Court may appoint; and failing the defenders so delivering the same to grant a decree against them for payment to the pursuers of 1000 sterling, with interest thereon at the rate of 5 per centum per annum from the date of citation to follow hereon till payment; or alternatively, to decern against the defenders for payment to the pursuers of the sum of1000 sterling, with interest thereon at the rate of 5 per cent per annum from the date of citation till payment.*
The pursuers averred in their condescendence that they had constituted jurisdiction against the defenders by arrestments ad fundandam jurisdictionem in the hands of a firm of engineers in Glasgow.
The defenders pleaded, inter alia;(1) No jurisdiction; and separatim, the action is incompetent in respect that a decree ad factum prstandum cannot be granted by the Sheriff of Lanarkshire against an English company.
On 24th February 1913 the Sheriff-substitute (Lyell), after hearing parties on the question of jurisdiction, closed the record and appointed the case to be put to the Procedure-roll.
By interlocutor, dated 17th March 1913, the Sheriff-substitute
allowed the pursuers to amend their record, inter alia, by adding to the crave of the initial writ the words printed above in italics, and by interlocutor, dated 2nd April 1913, he allowed a proof before answer and also allowed the defenders to add to their pleadings the following pleas in law:(1A) The amendments made by pursuers being incompetent and insufficient to alter or vary the ad factum prstandum conclusions still sought primo, the action should now be dismissed. (1B) In any event, in the action as amended by pursuers in terms of interlocutor dated 17th March 1913, the defenders plead no jurisdiction in so far as the ad factum prstandum conclusions are concerned; and separatim, the action is incompetent as regards the ad factum prstandum conclusions, in respect that a decree ad factum, prstandum cannot be granted by the Sheriff of Lanarkshire against an English company; the action should therefore be dismissed, with expenses.
The defenders obtained leave to appeal against this interlocutor, and the appeal was heard before the First Division on 5th June 1913.
Argued for the appellants;The jurisdiction which was founded by arrestment was a purely artificial jurisdiction and its scope should not be extended beyond the limits which were clearly recognised by authority.1 Jurisdiction could not properly be so founded in actions other than those which were purely petitory; this was the ratio of the decisions excluding jurisdiction founded by arrestment in actions of declarator and in actions concerning...
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