Scottish Court of Session Decisions

Subject_1 FORUM COMPETENS.
Subject_2 DIVISION IV.

Forum competens ratione rei sitæ et contractus.

John Haldane, Esq; Collector of his Majesty's Customs at Prestonpans
v.
The York-Building Company

December 29.
Case No. No 32.

In an action at the instance of a Scotsman against the York-Building Company, the defenders objected to the competency of the jurisdiction. The Lords, in respect of the Company's having an estate in Scotland, repelle the objection.

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Mr Haldane having borrowed L. 3000 Sterling from the York-Building Company, and as a security deposited with them L. 6000 Sterling of their own capital stock; he made an agreement with the Company about the time the L. 3000 became payable, that if that sum should be paid in Scotland, such payment should be accepted in discharge of the above mentioned security. A bill was in consequence of this agreement accepted by Mr Haldane, and duly paid to the Company's managers in Scotland; but the Company not having transferred the L 6000 capital stock to Mr Haldane or his trustee, he brought an action before the Court of Session against the Governor, Directors, Managers, and Assistants of the said Company for the value of the said L. 6000 capital.

The defenders excepted to the competency of the Court, upon the following grounds.

1mo, That they did not reside within the territories of the jurisdiction of the Court of Session, but at London, and were thereby subjected to the Courts of England, according to the rule, actor sequitur forum rei.

2do, Since the pursuer in this case was insisting for a transference to a share of the Company's stock, this by their rules could not be done but in their books; and therefore it ought to be craved only in that place where those were.

3tio, The defenders being pursued as administrators to a Company, they were not obliged to answer but in the place where the administration was committed to them, as in the case of tutors, executors, and others entrusted to offices; and they adduced a late decision, the Marchioness of Annandale against her Husband's Creditors*.

It was answered by the pursuer, to the first, That the Company's acts and contracts are as effectual in Scotland as in England: The agents authorised by the directors treat for and in behalf of the Company in Scotland, and have a proper office there; the Company have purchased a considerable property in Scotland, and thereby are become vassals mediate or immediate of the Crown, and in consequence convenable before the Courts in Scotland, wherever they may happen to reside, and that whether the question immediately concerns their estate in Scotland or not; otherwise no debt contracted by the Company in England could be recovered upon their estate in Scotland, since decrees in England are no manner of foundation for adjudications, arrestment, or poinding in Scotland.

To the second it was answered, That the action was not for delivery of stock, but damages for not delivery, which are prestable here; and though the action were for delivery, yet it might be executed in England, by transferring in the books according to the decree given.

It was answered to the third, That the Company were pursued, and as a body corporate, in point of suing or being sued, have the same capacity as any person in the realm, and so daily sue and are sued here. As to the case of the Marchioness of Annandale, she was convened as administratrix of a subject of moveables, for which she could only be exonered in the court where she had found caution to be accountable.

The Lords sustained process at the pursuer's instance.

Reporter, Lord Pollock. Act. Dun. Forbes, & Ro. Craigie. Alt. J. Boswell & Will. Grant. Fol. Dic. v. 3. p. 239. Edgar, p. 137.

* See General List of Names.