Magistrates of towns and other inferior judges have jurisdiction ratione rei sitæ as to the right of lands and houses within their bounds, tho’ the defender dwell not within their jurisdiction, he being cited by letters of supplement granted by the Court of Session.
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One Williamson having obtained decreet against Haigie, indweller in Perth, before the Bailies of Cupar, for removing from a dwelling house in Cupar; which being suspended, because it was a non suo judice, seeing the defender dwelt in St Johnston, and so was not subject to the jurisdiction of the Bailies of Cupar; and it being answered, That the process and sentence should be sustained, being for removing from a house within burgh, to the which the Magistrate of the burgh is sole and only Judge, albeit the party defender therein dwelt not within their liberty; seeing they had summoned defender, by virtue of the Lords letters, granting them warrant to summon the parties, albeit they dwelt not within their territories; for ratione rei they are Judges to them, and this is the inviolable custom within burgh, so to proceed in the like cases; and, in respect of the warrant foresaid of the Lords letters, and perpetual custom of the burgh, the decreet ought to be sustained. And the other answering, That the Lords letters are impetrated periculo petentis, and cannot be a warrant to an act, which otherwise in law is reprobate; for, albeit ratione rei, the Magistrate ubi res sita est may be Judge; yet that holds in law only, when the party is deprehended within the territories of that Judge, and is not kept by the laws of this kingdom, where there is a sovereign and superior supreme judicatory, where such actions may be pleaded, and where all parties, within whatsoever subaltern judgment in the realm, may be both convened and sentenced; and, if this ground were maintained within burgh, then of the like reason outwith burghs in all sheriffdoms, one Sheriff may proceed against parties in other sheriffdoms not subject to his court, which were to confound all judgments, and greatly should prejudge parties; notwithstanding of all which, the decreet was sustained, and the custom within burgh, and warrant of the Lords letters was allowed.
Act. Mowat.Alt. Barclay.
Fol. Dic. v. 1. p. 327. Durie, p. 779.
