Scottish Court of Session Decisions

Subject_1 FORUM COMPETENS.
Subject_2 DIVISION IV.

Forum competens ratione rei sitæ et contractus.

Mary Forrest
v.
Christopher Funstone

Date: 20 February 1789
Case No. No 36.

Holding a military office in Scotland without actual residence, does not create a domicil.

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Christopher Funstone, a native of Ireland, enjoyed for some years the office of master-gunner in the castle of Blackness in Scotland.

In 1779, when Mr Funstone first came to this country, he had provided himself with a bed, a chest of drawers, and some other articles, which he kept in the room appropriated for him at Blackness; but his office being almost a sinecure, even in the time of war, he had never resided there for more than three or four days.

In 1783, Mr Funstone appears to have left Scotland without any fixed intention of coming back. And in the returns made by the Commander in Chief for Scotland in 1784, he had been mentioned as absent without leave.

In the month of April 1784, Mary Forrest, likewise a native of Ireland, instituted, in the Commissary-court of Edinburgh, an action for declaring a marriage between her and Mr Funstone. It was said to have taken place in Ireland. The citation in this action was performed by leaving a copy of the summons at Blackness-castle.

An objection having been stated to the competency of the action, the Commissaries found, That “the defender having, at the time of the citation, been possessed of a furnished apartment in Blackness-castle, was amenable to the Scotch courts. In support of which judgment, a bill of advocation having been offered, the pursuer

Pleaded; To the effect of founding a jurisdiction, a domicil may be established, not only by actual and permanent residence, but also by holding an office or dignity, which renders such residence the duty of the party. Hence, in the Roman law, from which our ideas on this subject are chiefly borrowed, a senator was understood to be subject to the juridiction of the courts in Rome, although he might reside elsewhere; and a soldier was understood to have a residence ubi merebat. In the present case, these considerations are strengthened by the circumstance of the defender's having a furnished apartment in the place where the summons was executed; and where, as it appears from the official returns, his attendance was expected. It might be noticed too, that in such actions as the present, brought for ascertaining the status of the pursuer, our courts have proceeded on grounds much more slender than those which here occur; by sustaining action against an Englishman who had enjoyed a civil office in Scotland, but who, before the process was instituted, had renounced it and gone to England with an intention never to return; l. 8. D. de incolis; l. 23. D, ad municipal.; 29th December 1724, Haldane contra The York-buildings Company, No 32. p. 4818.; Dodds contra Westcombe, No 14. p. 4794.

Answered; A domicil in our law, is where a man has fixed his abode for more than forty days preceding the execution of the summons. It is true, that an action may be brought in the courts of Scotland, against one neither residing nor personally apprehended in this country, if the subject claimed by the pursuer is situated here, or if the only purpose of the action is to attach a land estate; and what is perhaps peculiar to Scotland, by arresting moveable effects belonging to a man residing in it, a jurisdiction may in certain cases be created. But to suppose, as the Commissaries have done, that having a few trifling articles of furniture was to establish a jurisdiction without any previous arrestment, especially where the ground of action is not said to have arisen in Scotland, is incompatible with the principles of our law. In a late case, it was determined, in opposition to the judgment in that of Dodds contra Westcombe, which has never been received as a precedent, That in actions merely declaratory, respecting personal rights, an arrestment of moveable effects situated in Scotland, will not justify the interposition of our courts, even where the contract sued on was said to have been executed here; Voet. lib. I. tit. 2. § 16.; Erskine, b. I. tit. 2. § 16.; Scruton contra Gray, No 35. p. 4822.

The question having been reported to the Court on memorials, the Lords were unanimous in altering the judgment of the Commissaries. The defender's having been absent from his duty, it was observed, might subject him to some military censure, but a domicil could not be created without residence; and the circumstance of his having a few articles of furniture in Scotland, at the date of the citation, without any arrestment of them, was equally ineffectual.

“The Lords remitted to the Lord Ordinary, to remit the cause to the Commissaries, with this instruction, that they dismiss the action.”

Lord Reporter, Dreghorn. Act. Dickson. Alt. Maccormick. Fol. Dic. v. 3. p. 239. Fac. Col. No 62. p. 112.