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Scottish Court of Session Decisions >>
Johnston v Johnston. [1579] Mor 4788 (7 March 1579)
URL: http://www.bailii.org/scot/cases/ScotCS/1579/Mor1204788-004.html Cite as:
[1579] Mor 4788
Subject_1 FORUM COMPETENS. Subject_2 DIVISION. II.
Forum Competens Ratione Domicilii.
Johnston v. Johnston
Date: 7 March 1579 Case No. No 4.
The pursuer and defender being in the same jurisdiction, action may proceed before their own judge, though the thing in question be within another jurisdiction.
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There was ane supplication given in be one Johnston, burgess of Edinburgh, that where he was persewit be another Johnston burgess in the samen, before the Provost and Bailies of the said burgh, to flit and remove frae certain field land not in the jurisdiction of the said Provost and Bailies, therefore desyrit the matter to be advocatit. It was reasonit be the Lords, that in respect they were both burgesses, et quod actor sequebatur forum rei, there should no advocation be grantit, because the parties were not prejudgit when everie ane of them was convenit before their awne Judge competent. To this was answerit, That albeit the parties were both of one jurisdiction, yet the lands lay not in the same jurisdiction whereof the parties were, et sic ratione rei de qua agitur the action aught to be persewit before the Judge in whose jurisdiction the lands lie, prout in cap. licet extra de foro competenti, et multo clarius et specialius, C. 3. Tit. 19. in L. ultima, ubi in rem actio exerceri debet. The Lords would not grant advocation, and ordainit the parties to use their defences, and fand that the Provost and Bailies might be Judges competent in such causes.
