Subject_1 FORUM COMPETENS. Subject_2 DIVISION. II.
Forum Competens Ratione Domicilii.
Lees v. Parlan
Date: 12 November 1709 Case No. No 12.
A soldier may be cited at the place where he resides, though he has not been 40 days there.
Click here to view a pdf copy of this documet : PDF Copy
James Parlan having been entertained at bed and board for three years together, by James Lees merchant in Cashel, in the county of Tipperary in Ireland, and afterwards taking on to be a soldier in Colonel Ferguson's Cameronian regiment; and Lees having got no payment, he pursues him before the bailies of Perth in March 1702, where the regiment then lay quartered, for L. 32 Sterling, as his aliment foresaid; and Parlan being personally apprehended, is holden as confessed, and decreet pronounced against him, and thereon an adjudication is led of some acres belonging to him, lying near the town of Glasgow, dated in November 1703. Parlan the debtor, dying in Flanders, one Duncan Parlan, his cousin, serves heir to him, and pursues a reduction of the foresaid two decreets, one constituting the debt, and the other of adjudication; and against the last, offered to prove he was dead long before the pronouncing of it; and a commission being directed to Flanders, it was this day found proven by the clear testimonies of his fellow soldiers in the same company and regiment with him, that he died in June 1703, and they were at his burial; whereupon the Lords reduced the adjudication, as pronounced after he was dead, and so null, But Parlan, the heir, was nothing the better of this, so long as the decreet of constitution of the debt stood; for, though Lees lost the bygone accumulations, yet he could adjudge the same land of new. So Parlan repeated his reasons of reduction against the first decreet, and primo loco insisted on this, that he offered to prove that he was alibi the time of the said decreet; and Lees offered to prove he was actually then at Perth, and accordingly led a probation, which amounted to this, that the town officer deponed, he cited him personally apprehended, and his procurator declared, that he was employed to compear for him, and did take up the process, and acquainted him that the debt and account were referred to his oath of verity, and he refused to go to the court and swear, so that decreet went out against him. Some contended his being there was not sufficient to found the bailies jurisdiction over him, but it was still a non suo judice, unless it were proven he was there 40 days before, which makes a domicil; but the Lords thought soldiers had no fixed dwelling, but must remove at their Captain's order, unless they be in garrison or winter quarters; and therefore found it sufficiently proven, that, at the time of the citation and decreet, he was at Perth. Then he repeated his other reasons of reduction, 1mo, That the decreet was null, being by an inferior judge in time of the vacance, without a dispensation from the Lords. Answered, 1mo, Magistrates of royal burghs need no dispensation, but hold courts all the year, as is known in Edinburgh and many other places. 2do, By custom they sit without dispensation till the 20th of March and August, and this was on the 7th of March, and so needed none.—The Lords repelled the nullity. 2do, Objected, this was a pursuit at the instance of one out of the kingdom, and no mandate, commission, or factory from him. Answered, Ought to be repelled, for, 1mo, The account subscribed by Lees was produced, which was a sufficient mandate, and Perezius ad tit. cod. de postulando et de procuratoribus says, the having and producing the pursuer's writs implies a tacit mandate, 2do, There is a factory now produced, which, if it had been called for, would have been given in to the process.——The Lords repelled the objection. 3tio, Alleged, the account was most exorbitant, being L. 10 Sterling a year for this poor man's aliment, the half being enough for him.—The Lords would not loose the decreet for this, but declared they would restrict and modify it. 4to, Objected, that the Bailies committed manifest iniquity in refusing to ordain the pursuer to give his oath of calumny on the libel and account. Answered, 1mo, This was plainly sought animo protelandi, the pursuer not being on the place, but living in Ireland, and being in facto proprio, it could not be an oath of calumny, but of verity; and he being made judge of the account, by being referred to his oath, it was more just he should have compeared and deponed, than humorously to insist on the pursuer's oath; and yet he shunned to appear himself, because he durst not upon oath deny the verity of the account. 2do, The pursuer produces a second extract of the same decreet, making no mention, that the oath of calumny was so much as sought.—The Lords found this no nullity, unless he had been cited to give his oath of calumny; but taking notice of the disconformity of the two extracts, contradicting one another, they ordained the solicitors to cause cite Graham* the clerk of Perth, to answer for that malverse in his office; and if he cannot clear himself, then to be fined and censured by the Lords.
Fol. Dic. v. 1. p. 326. Fountainhall, v. 2. p. 525.
