Thorburn v. Dempster [1900] ScotLR 37_415 (03 February 1900)

Thorburn v. Dempster [1900] ScotLR 37_415 (03 February 1900)

Defences limited to a plea of 'no jurisdiction' without addressing the merits are incompetent under Scottish procedure; a party entering into a contract for heritage in Scotland is subject to Scottish jurisdiction, and the court cannot determine jurisdiction or merits without a properly constituted record.

Citation
[1900] ScotLR 37_415
Parties
Pursuer: John Hay Thorburn; Defender: Alexander Dempster
Jurisdiction
Scotland
Judgment Date
03 February 1900
Procedural Posture
Civil / Interlocutory Appeal on Jurisdiction and Competency of Defences
Outcome
Interlocutors of 8th November 1898 and 13th July 1899 recalled; case remitted to Lord Ordinary to allow defender to lodge proper defences; pursuer awarded expenses to date.
Legal Topics
Jurisdiction Over Foreign Parties, Competency of Defences, Contract for Sale of Heritage, Scottish Court Procedure
Civil Procedure Contract Law Jurisdiction Jurisdiction Over Foreign Parties Competency of Defences Contract for Sale of Heritage Scottish Court Procedure

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Parties

John Hay Thorburn

Pursuer

Alexander Dempster

Defender

Procedural Posture

Civil / Interlocutory Appeal on Jurisdiction and Competency of Defences

Legal Issues

  1. 1 Whether Scottish courts have jurisdiction over an English domiciliary who entered into a contract for the purchase of heritage in Scotland
  2. 2 Whether a defence limited to 'no jurisdiction' without addressing merits is competent under Scottish procedure

Ratio Decidendi

Defences limited to a plea of 'no jurisdiction' without addressing the merits are incompetent under Scottish procedure; a party entering into a contract for heritage in Scotland is subject to Scottish jurisdiction, and the court cannot determine jurisdiction or merits without a properly constituted record.

Court Disposition

Interlocutors of 8th November 1898 and 13th July 1899 recalled; case remitted to Lord Ordinary to allow defender to lodge proper defences; pursuer awarded expenses to date.

Orders

  • Recall interlocutors of 8th November 1898 and 13th July 1899
  • Remit to Lord Ordinary to allow defender to lodge defences if so advised