Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 FORUM COMPETENS.
Subject_3 Holding a military office in Scotland, without actual residence, does not create a domicile.

Mary Forest
v.
Lieutenant Christopher Funston

Date: 20 February 1789

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[Fac. Coll. X. 112; Dict. 4823.]

Hailes. The defender is master-gunner at Blackness Castle; this is not merely a name entitling him to a salary, but it is a stationary office. He has military stores committed to his charge, and he has an apartment, such as it is, in the garrison; and if his domicile be not there, we know not where it is. An execution against him, at his domicile in Blackness Castle, would be a proper one. He says that his domicile is at Strathbane in Ireland: but I have no evidence of this; and, until I am better informed, I must presume that his sedes rerum et fortunarum is at Blackness, and that he has a temporary leave of absence from the Commander-in-Chief, which permits him to be elsewhere than in the place where his duty fixes him.

Justice-Clerk. It matters not whether Lieutenant Funston be absent with or without leave; he is a foreigner, and has no residence in this country.

Eskgrove. There is no law which says that a man, being an officer, and having an office and a house annexed to it in Scotland, will, although a foreigner, be amenable to the jurisdiction of Scottish courts. The governor of Fort Augustus has a very good house there, and yet no declarator of marriage brought against him in Scotland would be of any avail. [To make his species facti applicable to the purpose, he should have put the case of the deputy-governor, who does reside, instead of that of the governor, who is understood to draw a mere pension without any obligation to residence: if governor Trapand be not amenable to the courts in this country ratione domicilii, I know not what other domicile he can have: he will be like Sir Thomas Wallace, who, as the Court has found, is amenable to no court for adultery.]

On the 20th February 1789, “The Lords remitted to the commissaries to dismiss the action.”

Act. J. Dickson. Alt. Edw. M'Cormick. Reporter, Dreghorn.