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Smith v Miller. [1634] Mor 7484 (8 March 1634)
URL: http://www.bailii.org/scot/cases/ScotCS/1634/Mor1807484-199.html Cite as:
[1634] Mor 7484
Jurisdiction with regard to Ejection. - Improbation. - Contravention. Process of Transference. - Clandestine Marriage.
Smith v. Miller
Date: 8 March 1634 Case No. No 199.
A cause was advocated, because an inferior Judge had proceeded on a warrant of arrestment granted by another inferior Judge.
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In an advocation of a pursuit moved before an inferior Judge, for making of arrested goods furthcoming, because the arrestment, which was the ground of that pursuit, was executed by virtue of a precept, directed by warrant of another inferior Judge, and no Judge ought to proceed upon pursuit moved upon that arrestment, but that Judge only, by the warrant of whose precept the arrestment was laid on and executed; this reason was found relevant; for the Lords found, no other inferior Judge ought to proceed upon such precepts and actions, which were only intented upon these grounds, but that Judge alone who directed the warrant and precept to arrest; and it was thought by the Lords, that, if the arrestment had been executed by virtue of letters of arrestment, directed by the Lords of Session, that no inferior Judge could proceed in any action, to make these arrested goods furthcoming, but only the Lords of Session; albeit some were of a contrary opinion, anent this case of arrestment, by warrant of the Lords letters, whereupon they thought any Judge might proceed, as a good ground to all actions everywhere; but this point was not decided, seeing it was but drawn in to be reasoned upon, by way of argument in this case, where the action was moved upon an arrestment, directed by another inferior Judge, and the case appears not alike; for, by the arrestment made by the Lords' letters, all the Judges within the realm may seem to proceed, seeing the Lords' jurisdiction is universal, over all the kingdom; and, if the arrestment made by any inferior Judge may be a warrant to that Judge himself to proceed thereon, far more may it appear reasonable, that he may proceed upon the warrant of the more Supreme Judge; for it is, in effect, a power to him so to do, which is not alike among inferior Judges themselves, where their acts are distinct, and their jurisdiction is not universal, and where, par in parem non habet imperium, neither may he usurp upon what pertains to his equal; even as an inferior Judge may proceed upon an obligation, although registered in the books of Session.
