Subject_1 FORUM COMPETENS. Subject_2 DIVISION. II.
Forum Competens Ratione Domicilii.
Spottiswood v. Morison
Date: 15 July 1701 Case No. No 10.
A person in Haddington-shire, who resided often in Edinburgh, with his mother, and had a seat in church there, found amenable to the jurisdictions of both counties.
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Mr John Spottiswood, advocate, having got an assignation from Mr Harry Morison to a bond due to him by Morison of Prestongrange, he pursues him before the Sheriff of Edinburgh; but Prestongrange apprehending the assignation to have been elicited from Mr Harry in lecto to his prejudice, who was his nearest heir, et alioqui successurus, he give in a bill of advocation, on this reason, that he had his domicil in East Lothian, and so was not convenable before the Sheriff of Mid-Lothian. Answered, Prestongrange staid more at Edinburgh than in his country-house, and had focum et larem with his mother-in-law, Lady Craigleith, and had likewise a seat in the College-kirk of Edinburgh. Replied, He was still pursued coram non suo judice, because it could not be subsumed that he had 40 days residence together within the town of Edinburgh, which is required by custom to establish a jurisdiction. The Lords considered that the gentlemen living near Edinburgh, though they had occasion frequently to be in town, yet did not reside constantly in either, but were going and coming betwixt the two; and if 40 days were required, they might shift both jurisdictions, and be convenable in neither, seeing they will scarcely be 40 days together in any of the two; therefore the Lords in such a case thought them liable to both, and therefore repelled Prestongrange's reason of advocation, and remitted the cause to the Sheriff. Some thought the proper remedy was to pursue such whose domicil was in a manner in both shires only before the Lords.
Fol. Dic. v. 1. p. 326. Fountainhall, v. 2. p. 119.
