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Scottish Court of Session Decisions >>
Denholm v Johnston. [1674] Mor 7485 (9 January 1674)
URL: http://www.bailii.org/scot/cases/ScotCS/1674/Mor1807485-201.html Cite as:
[1674] Mor 7485
Jurisdiction with regard to Ejection. - Improbation. - Contravention. Process of Transference. - Clandestine Marriage.
Denholm v. Johnston
Date: 9 January 1674 Case No. No 201.
The Court, before which a process depends, is the only one competent for transferring, unless the representatives live in another territory; in which case, the Court of Session must transfer.
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In a transferring of an action, depending before the Commissaries, wherein there was litiscontestation; it was alleged for the defender, The Commissaries being competent Judges, in prima instantia, as likewise to the transferring of such processes as depend before them, it was against all form to transfer before the Lords, who are only in use to transfer decreets pursued or recovered before themselves. It was replied, That, as the Lords may advocate the cause from the commissaries, so they may transfer any dependence before them; likeas, the pursuer having a declarator raised before the Lords, for recovering of that same debt, these actions ought not to divide; and the Session being the more sovereign judicatory, ought to draw that action before the Commissaries to the Session, there being contingentia causæ. The Lords did sustain the allegeance, and found, that, in form, the transferring against the heirs and executors of a defunct, who was pursued before an inferior Court, could not be intented but before that same Judge before whom the principal cause was intented, unless those that did represent him did not live within that jurisdiction, and were alterius fori; in which case, the Lords of Session were the only competent Judges.
Fol. Dic. v. 1. p. 501. Gosford, MS. No 667. p. 393.
