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Scottish Court of Session Decisions
You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kermick v. Watson [1871] ScotLR 8_628 (7 July 1871)
URL: http://www.bailii.org/scot/cases/ScotCS/1871/08SLR0628.html
Cite as: [1871] SLR 8_628, [1871] ScotLR 8_628

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SCOTTISH_SLR_Court_of_Session

Page: 628↓

Court of Session Inner House First Division.

Friday, July 7. 1871.

8 SLR 628

Kermick

v.

Watson.

Subject_1Process
Subject_2Jurisdiction
Subject_3Reparation
Subject_4Slander.
Facts:

In an action of damages for slander, alleged to have been uttered within the territory of the Sheriff of Forfarshire by a person not subject ratione domicilii to any jurisdiction in Scotland— Held that the Sheriff of Forfarshire had jurisdiction to try the case, the locus delicti or quasi delicti being within his territory, and personal service of the summons having been made upon the defender while residing there.

Headnote:

This was an action of damages for slander brought before the Sheriff-court of Forfar, at the instance of William Lovat Kermick, residing at Kirriemuir, against William Watson, a banker's clerk, holding a situation in Manchester, but who at the time when the slander libelled was alleged to have been uttered was upon a visit to Kirriemuir. The summons was personally served upon him before he left Kirriemuir, which he did two days thereafter. Two acts of slander were libelled, both as occurring at Kirriemuir. It was admitted that the defender, though now resident in Manchester, was horn in Forfarshire.

Against this action the preliminary defence of no jurisdiction was set up.

The Sheriff-Substitute ( Robertson) found, in point of law, that the defender being admittedly resident in Manchester, and having only been on a visit to Scotland when the summons was served, and having only resided in this country about a fortnight prior to the serving of said summons, was not within the jurisdiction of the Sheriff-Substitute; therefore dismissed the action.

Against this interlocutor the pursuer appealed to the Sheriff ( Maitland Heriot), who, considering that the case was ruled by that of Crichton v. Robb, 9th Feb. 1860, 32 Jur. 279, dismissed the appeal.

The pursuer then appealed to the First Division of the Court of Session.

Nevay, for him, contended that (1) nativity and (2) personal citation in this country, are sufficient to found jurisdiction, especially when combined with the locus contractus (the quasi delict in this case inferring quasi contractus). Reference made to Hog v. Tennent, 1760, M. 4780; Grant v. Pedie, 5 July 1825, 1 W. and S. 716; M'Arthur v. M'Arthur, 12th Jan. 1842, 4 D. 354; Ritchie v. Fraser, 11th Dec. 1852, 15 D. 205; Dickie, 20th Sept. 1811, F.C.; Crowder v. Watson, 18th Nov. 1831, 10 S. 29, and 6 W. and S. 271.

Watson, for the defender, referred to Pirie Sons v. Warden, 20th Feb. 1867, 5 Macph. 497; Bruhn v. Greenwaldt, 2 Macph. 335; Sinclair v. Smith,17th July 1860, 22 D. 1475; Logan v. Thomson, 24 Jan. 1859, 31 Jur. 174.

At advising—

 Judgment:

Lord President—This is an appeal in an action of damages for slander raised before the Sheriff-court of Forfarshire, by William Kermick, a resident in Kirriemuir, against William Watson,

Page: 629↓

a banker's clerk, who is not resident in that part of the country, and has no domicile in Scotland. The slander complained of is said to have been uttered upon two occasions—First, upon 31st August, and second, upon 2d September 1870. Six days after the second case of alleged slander the summons was raised, and two days thereafter was served upon the defender personally. It being admitted that, ratione domicilii, the defender was not subject to any jurisdiction in Scotland, the question is whether there were sufficient other circumstances in the case to sustain the Sheriff's jurisdiction in this matter? There were two circumstances particularly relied upon as grounds of jurisdiction—(1) that the slander complained of was uttered in Forfarshire; and (2) that the service of the summons was made upon the defender personally. The question is one of great nicety as well as of general importance. But there are some questions of a similar kind which have already been determined in our courts, which advance us a certain length both in principle and authority towards the decision of this case. There is no doubt that a court has power to enforce a contract either made within its territory, or having its place of performance there, if to the action the defender has been lawfully summoned within the territory of the Court. This has been long settled as to the supreme courts, and the same rule was affirmed, as to the inferior courts, by the case of Pirie & Co. of Aberdeen against Warden, in which the Court refused to recognise any distinction between the superior and inferior courts as regards this ground of jurisdiction—I mean the locus contractus combined with due service within the limits of the Court's territory. But then this is not a case of contract, and therefore Pirie v. Warden does not apply. No doubt, if the slander complained of is established, the defender is under an obligation to make reparation to the pursuer. But it is not a contract obligation—it is an obediential obligation; and without anything like subtlety or over refinement of technicality, but simply as a matter of common sense, it may be affirmed that that obligation arose within the limits of the territory of the Forfarshire Sheriff-court. There is therefore a strong analogy to be found in the case of Pirie v. Warden. But the real difficulty in dealing with a case of this kind is to keep in view the distinction that exists between criminal and civil jurisdiction. Criminal jurisdiction rests upon the locus delicti. Where the crime has been committed, there, and there only, as a general rule, can a proceeding be entertained ad vindictam publicam. It is otherwise, however, in civil cases. Even in an action of damages for loss occasioned by the same crime, the civil court would not have jurisdiction merely on the ground of locus delicti. But if the delict or quasi delict, out of which the obligation of reparation arises, be committed within the territory, and the summons be personally served upon the defender within the territory, although the ground of jurisdiction be quite different from that in the criminal court, it has some resemblance, for it is the locus delicti combined with another element. I cannot help thinking that there are some quasi delicts for which I think it is clear that redress must be competently had at the place, if the offender can be found. Suppose, for instance, that a man commits a spulzie of goods within a judge's territory, it would be a most strange result to hold that one could not go to the judge for redress if the offender happened to be a foreigner. Again, suppose a persistent trespass be committed upon my lands by a person who is a foreigner, am I not entitled to go to the judge of the bounds and protect myself by an interdict? If this would hold good in an invasion of property, which I think there is hardly room to doubt, it is no great stretch to say that if a foreigner slander my good name, thereby probably doing me irreparable injury amongst my neighbours and those with whom I live, I am entitled to bring him before the Judge in whose territory I live, if I find him within its limits. Now that is the very case we have here to deal with; and after giving it my fullest consideration, and referring to principle and analogy of other cases, I think the sound conclusion is that the Sheriff had jurisdiction to entertain this action.

The other Judges concurred.

The Court accordingly recalled the Sheriff's interlocutor, and remitted to the Sheriff to sustain his jurisdiction, and proceed in the case as shall be just.

Solicitors: Agent for Pursuer and Appellant— J. Knox Crawford, S.S.C.

Agent for Defender and Respondent— W. M. Johnstone, S.S.C.

 1871

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URL: http://www.bailii.org/scot/cases/ScotCS/1871/08SLR0628.html