What Courts competent for Registration, in order to do Diligence.
Sir George Weir of Blackwood v. William Cochran of Kilmaronock, and Others
Date: 3 February 1703 Case No. No 392.
It was objected against some arrestments, that the bonds on which they proceeded, though for considerable sums were registered in the Commissary court books, on which registration no diligence could proceed. The Lords, tho' it was customary to register bonds in the Commissary-court books, found the arrestment null.
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In the competition betwixt Sir George Weir of Blackwood, William Cochran of Kilmaronock, and other Creditors of John Corse, merchant in Glasgow, it was objected by Blackwood, that though his arrestment was posterior in date to the other creditors, yet it was preferable in law, because he had registered his bond in the books of Session, and taken out letters of arrestment thereon; whereas Kilmaronock's bond was only registered in the Commissary-court books of Glasgow; and on their precept the arrestment is laid on, which is null, being forum incompetens for so great a sum as 3000 merks, et ultra vires of their cognisance and jurisdiction, who, by their instructions, are tied up to L. 40, as has been oft decided, 28th November 1621, Lord Lindsay contra Ayton, No 286. p. 7575.; 6th February 1624, Gordon contra M'Heugh, No 284. p. 7573., observed both by Haddington and Dury; and 19th July 1625 Ker contra Ker, (See Appendix)., where the Commissaries' decreets were annulled when they exceeded the foresaid boundaries; and lately, on the 1st of July 1696, Paterson against Ross and Urquhart, No 292. p. 7079., the Lords annulled decreets of adjudication, because they proceeded on decreets of constitution obtained before the Commissary of Ross for considerable sums, to which he was not judge competent, and his jurisdiction was not prorogated by the parties. Answered for Kilmaronock and the other creditors-arresters, That all of them dwelt within the Commissary of Glasgow's jurisdiction, both the debtors and the arresters, and the persons in whose hands the arrestments were laid; and to quarrel such diligences, may lay a preparative to subvert most of the diligences in the nation, seeing the instructions are plainly in desuetude, and the Commissaries judge promiscuously in any sums brought before them; likeas, their jurisdiction is sufficiently homologated and prorogated by the clause of registration, which bears any judges' books competent; and it is the advantage of the lieges to have their election whom to go to, by which they are served both cheaper and readier; and as to the decision, Paterson against Ross, it was in a competition of real and heritable rights to which Commissaries are not judges; but this is in the case of arresters, where the diligence is personal, and the subject moveable. The Lords thought the clause of registration gave neither warrant nor consent, unless it had per expressum bore the Commissaries' books; but in respect of the general custom, and the danger of many rights, they, by a scrimp plurality, sustained the arrestment laid on by the Commissary's precept, though it was beyond the bounds of that capacity to which he is restricted by the old laws. Yet this cannot hold in all cases; for what if he had registered his bond in the Admiral's books, and taken out his precept of arrestment, it would have been certainly null; for jus dicenti extra territorium impune non paretur; but the general custom of the Commissaries judging in such matters over-ruled this case.
On a bill given in for Sir George, the Lords rescinded this interlocutor, and found the diligence on the Commissary's precept for arresting null.
Fol. Dic. v. 1. p. 510. Fountainhall, v. 2. p. 178.
