Judge acting in feriate time; or extra territorium.
John Leggat v. Ann and Rachel Denoons
Date: 17 February 1736 Case No. No 10.
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In the question betwixt these parties, the Lords found a decreet of furthcoming, obtained before the Bailies of Edinburgh, sitting in Edinburgh, against one of the inhabitants of the Canongate, not subject to their jurisdiction, null; and repelled the answer, That, by constant and immemorial usage, the inhabitants of the Canongate were convened before the Bailies of Edinburgh.
Fol. Dic. v. 1. p. 202. C. Home, No 15. p. 36.*** Lord Kames reports the same case:
A decreet recovered before the Magistrates of Edinburgh against an inhabitant of the Canongate, held as confest upon a citation pro confesso, was, after his decease, found intrinsically null, the defender not having been subject to the jurisdiction; and one cannot be considered as contumacious in not answering to a citation before an incompetent judge; extra territorium jus dicenti impune non paretur; and the Lords did not regard the communis error, and constant consuetude of the Magistrates of Edinburgh, exercising a jurisdiction over the inhabitants of the Canongate, which might be sufficient to support diligence upon a debt habilely constituted, which is favourable, but can never be sufficient to found a debt, where there is no other document save the decreet itself.
