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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> A B v. C D [1888] ScotLR 25_736 (6 June 1888) URL: https://www.bailii.org/scot/cases/ScotCS/1888/25SLR0736.html Cite as: [1888] ScotLR 25_736, [1888] SLR 25_736 |
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Page: 736↓
[
Fraser
competent
to
Defender.
An action
was
brought against a
domiciled
Englishman to have it
declared
that he had entered into a marriage in, Scotland by
declaration
![]()
de
præsenti. The
defender
had returned to England, and his agents in Scotland accepted service of the summons, but under reservation of all pleas
competent
to him. Held that the Scottish
courts
had no jurisdiction over him.
A B, a
widow,
raised an action against
C
![]()
D
to have it
declared
that they
were
lawfully married to each other in Scotland on or about 24th January 1888, or alternatively
for
![]()
damages
![]()
for
seduction.
The pursuer averred that on the morning of Tuesday 24th January a
written
![]()
declaration
of marriage
de
præsenti
was
![]()
drawn
out and subscribed by her and the
defender
before two
witnesses,
and that in
consequence
of such
declaration
of marriage the pursuer permitted the
defender
to have intercourse
with
her,
which
she
would
not have permitted had she not
considered
herself legally married to him.
Service of the summons
was
accepted by the agents of the
defender
in Scotland, but under reservation of all pleas
competent
to him, and
defences
![]()
were
lodged
for
him.
In the
defences
it
was
averred that the
defender,
![]()
who
![]()
was
born in England, never acquired a
domicile
in Scotland, and
was
not subject to the jurisdiction of the Scottish
courts.
![]()
The
defender
pleaded—No jurisdiction.
Argued
for
the pursuer—(1) The
contract
had been entered into in Scotland, and the matrimonial
domicile
of the spouses
was
there. Residence in Scotland
for
![]()
forty
![]()
days
![]()
was
sufficient to
found
jurisdiction in actions of
declarator
of marriage. It
was
only in actions of
divorce
that the plea of no jurisdiction had been sustained—
Fraser
on Husband and
Wife,
ii. 1275. (2) But here there had been acceptance of service,
which
![]()
was
equivalent to personal
citation
in Scotland.
Whatever
pleas
were
reserved, the acceptance of service barred the
defender
![]()
founding
upon
want
of
citation,
and pleading no jurisdiction—
Campbell's
Law of
Citation—pp.
66, 67.
Argued
for
the
defender—(1)
![]()
Where
an action of
declarator
of marriage
was
raised against a
foreigner
there must be personal
citation
upon the
defender
in Scotland—
Fraser
on Husband and
Wife,
ii. 1272 (note a); Wylie v. Laye, July 11, 1834, 9
F.C.
495, and 12 S. 927. (2) There had been nothing here equivalent to personal
citation,
and all pleas, including that of no jurisdiction, had been reserved in the acceptance of service.
The Lord Ordinary on 6th June pronounced the
following
interlocutor:—“Having heard
counsel
on the
closed
record on the procedure roll, sustains the
first
plea-in-law stated
for
the
defender
of no jurisdiction:
Dismisses
the action, and
decerns:
![]()
Finds
the
defender
entitled to expenses,” &
c.
![]()
Counsel
for
the Pursuer—
Baxter. Agent—
William
Black, S.S.
C.
Counsel
for
the
Defender—
Comrie
Thomson. Agents—
Hope, Mann, & Kirk,
W.S.