You are here:BAILII >>
Databases >>
Scottish Court of Session Decisions >>
Stuart v Scot. [1697] Mor 4817 (14 July 1697)
URL: http://www.bailii.org/scot/cases/ScotCS/1697/Mor1204817-031.html Cite as:
[1697] Mor 4817
A liferentrix was pursued before the Sheriff, where the liferent lands lay, to repair the houses thereon. The Lords advocated the cause, because the defender did not reside within the same county.
Click here to view a pdf copy of this documet : PDF Copy
Arbruchell, reported Mr John Stuart younger of Blackhall, against Jean Scot, liferentrix of the lands of Mearns, and now spouse to Drummond of Hawthornden. It was an advocation of a pursuit against her, before the Sheriff of Renfrew, upon the act 25th 1491, and act 15th 1535, to find caution to uphold and repair the houses on the liferented lands. The reason of advocation was, I live not within the shire of Renfrew, et actor sequitur forum rei; and so you cannot convene me extra territorium. Answered, The acts of Parliament allow an edictal citation at the market-cross where the lands lie; and I, ex superabundanti have by a supplement cited you on my libel. Replied, Letters of supplement are only designed for citing of persons called for their interest, as in actions of making forthcoming, &c. but never against principal parties called as defenders. The Lords, considering the competency of jurisdictions, remembered the rules of law are, that unusquisque forum sortitur vel ratione originis, seu domicilii, vel loci contractus, delicti, vel ratione rei sitæ; but it is not sufficient, that because you are infeft in lands lying within such a shire, therefore you must answer as to any action relating to these lands before the Sheriff of that shire, though you dwell without his territory. But here the first act of Parliament being before the institution of the College of Justice, the Sheriff seems to be made Judge competent to such actions privative of all others. On the other hand, the Lords considered the fiar had suffered this to lie over for thirty years, and now pursued her to repair, (so cognition must first be taken in what condition she received them at her entry to her liferent;) therefore they advocated the cause from the Sheriff to themselves, though the Sheriff in prima instantia is certainly competent thereto, if the defender dwelt within his jurisdiction.
Fol. Dic. v. 1. p. 328. Fountainhall, v. 1. p. 784.
