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Scottish Court of Session Decisions >>
A. v B. [1675] Mor 7412 (25 June 1675)
URL: http://www.bailii.org/scot/cases/ScotCS/1675/Mor1807412-125.html Cite as:
[1675] Mor 7412
Power of advocating Causes. - Power of advocating from one Court to another, where the Court of Session itself has no jurisdiction in the Cause.
A v. B
Date: 25 June 1675 Case No. No 125.
Causes which resolve into a competition upon double rights may be advocated, although no intricacy be alleged.
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Upon a report made to the Lords concerning an advocation, upon that reason, that there was a competition in the case upon double rights; it was debated among the Lords, Whether the cause being undoubtedly competent before the inferior Judge, the pretence, that there was a competition of double rights, should be a relevant ground of advocation; and some of the Lords were of opinion, that in the general to advocate upon that reason, it were hard, seeing inferior Judges their jurisdiction as to causes competent before them, is founded upon their rights; so that they have as good right to the same as to any other property: And in removings and actions for mails and duties, and others such real actions, when a defence is founded upon a right, or when parties compear for their interest, and produce rights, it may always be pretended, that the question is anent double rights; so that the jurisdiction of inferior Judges may be altogether evacuated, and the Lords, who have scarce time to decide causes that are proper before them, should be cumbered with processes that may and ought to be determined by an inferior Judge, contrary to the acts of parliament, and in special the 39th act of Queen Mary, her 6th parliament, and the 8th act of his Majesty's 3d parliament, 3d session, discharging the advocation of causes, whereunto inferior Judges are expressly appointed Judges. But if it should be represented and appear that there is intricacy in such causes, wherein there may be question of double rights, the Lords in that case may advocate; but upon the pretence of double rights, as to which it may be there is no difficulty, there ought to be no advocation. Yet it was urged by ——, that the Lords were in use to pass advocations upon the reason foresaid; and albeit the pretence of custom not being verified, and, though verified, being against law, ought not to be put in the balance with express laws, founded upon good reason and common law, yet the bill was passed.
Reporter, Redford.
Fol. Dic. v. 1. p. 497. Dirleton, No 279. p. 136.
