Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL.
Robert Craig of Riccarton v. David Kennedy of Belliecultra
Date: 24 January 1695
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Arbruchel reported Robert Craig of Riccarton, advocate, against David Kennedy of Belliecultra in Ireland, for repetition of some articles allowed him in a discharge, when the pursuer's brother and he counted for his intromissions with the rents of his lands in Ireland, as being indebite solutum. The defence was, Actor sequitur jorum rei; which, in law, is quadruplex,—viz. originis, domicilii, rei sitœ, et contractus; none of which meet here.
Answered,—The brocard is true, but has many exceptions, whereof this is one, Si reus foro renuntiaverit, l. 65, D. de Judic. Which this defender had done, by making his accounts in Scotland, and getting his discharges here; so it became locus contractus: likeas, he was in Scotland when cited on this process.
The Lords found the defender not convenable before them, unless the pursuer could instruct that he had effects in Scotland, either heritage or moveables, which he could attach by diligence. And, in Murray of Broughton's case, where the Lords found themselves competent judges to an Irish estate, it was because he had also an estate in Scotland. Riccarton's design, if he had obtained a decreet, was to have watched him when he came to Scotland about his trade, and then to have attached him. Some thought, as to the discharges in Scotland, his counting here founded the jurisdiction; but the plurality assoilyied him, as not liable to answer here.
