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Scottish Court of Session Decisions >>
Wilkie v Muirhead. [1629] Mor 4814 (7 March 1629)
URL: http://www.bailii.org/scot/cases/ScotCS/1629/Mor1204814-026.html Cite as:
[1629] Mor 4814
Although a defender in a process resided with his family in London animo remanendi, and the pursuit was upon a contract executed in England, yet process was sustained against his person when he came to Scotland, and against his goods there, he being a Scotsman, and personally summoned in Scotland.
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A pursuit at John Wilkie's instance, for payment of certain prices of victual sent by him to David Muirhead, was sustained against the said David, being pursued in Scotland before the Lords of Session, albeit the defender's procurators alleged, That he could not be convened in hoc foro, seeing he and his family were actual dwellers and residenters at London, where they remained animo remanendi; likeas, the victual was English victual, and the pursuer then dwelt in Berwick, where he is burgess; and the writ for the bargain was made and dated at Berwick; whereby the defender alleged, That neither ratione domicilii, neque rei de qua agitur, neque contractus, he was subject to this judicatory; which allegeance was repelled, and the process in this judgment sustained against him, to have execution against his person when he came to Scotland, and against his goods and gear in Scotland, he being a Scotsman and factor to Scotsmen, and being summoned personally in Scotland.
Act. Belshes.Alt. Stuart.Clerk, Gibson.
Fol. Dic. v. 1. p. 327. Durie, p. 435.*** Auchinleck reports the same case:
David Muirhead, factor in London, who had retired himself to England animo remanendi, is pursued by John Wilkie, for not selling of a loading of English wheat sent to the said factor to be sold in London, which he hath not done conform to direction, and thereby hath prejudged the said John in a great sum of money. It was alleged, That no process can be granted against the defender here in Scotland, seeing he was dwelling in England animo remanendi, and res de qua agitur is English wheat, and the direction was given in England. It was answered by the pursuer, That they were both Scotsmen, and the pursuer restricted the execution of his sentence only to be extended against goods and lands within the kingdom of Scotland; and that he was summoned, personally apprehended; and that his chief calling and stay was to be factor to Scotsmen. The Lords repelled the declinator of the judgment in respect of the reply, chiefly in respect of the restriction of the execution of the sentence against his goods in Scotland.
