Scottish Court of Session Decisions

Subject_1 FORUM COMPETENS.
Subject_2 DIVISION VII.

Testament within what District it must be Confirmed.

Lord Mersington's Creditors competing

Date: 7 January 1708
Case No. No 63.

The testament of a Lord of Session being, confirmed in Edinburgh and also in the country, where his estate lay and where he died, the Lords preferred the confirmation before the country Commissary.

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Sir Alexander Swinton of Mersington having given L. 100 Sterling to the African Company, as a part of L. 400 he signed for Sir Alexander Cuming of Culture, his son-in-law; James Blackwood, Rochead of Whitsomhill, and other creditors, confirm themselves executors creditors to him in that sum, by the Commissaries of Edinburgh. Sir John Swinton, his nephew, being also a creditor, he confirms himself before the Commissaries of Lauder; and in a competition, Culture, &c. craving preference, as being first confirmed, Sir John objects, That they had confirmed in the wrong court; for his estate lying in the Merse, and his lady and family there, and it being his principal messuage, the confirmation at Lauder was the most formal, legal, and competent, in which jurisdiction his lands lay, especially considering that he died there. Alleged, That by his station as a Lord of the Session, he was tied to Edinburgh for six months in the year, and his attendance on the bills, &c. even required a part of the other six; so Edinburgh behoved to be his principal residence, and his going to his country house could be looked on as no more but a recess for his diversion and recreation; and Edinburgh is the communis patria to all Scotsmen; and so mobilia sequuntur personam; and where he most resided, there his effects must be confirmed. Answered, Where a man has more domicils than one, (as the most in public offices and stations have) the characteristics to discern the principal, are, where his wife, family, and servants stay; where hisl and-estate lies; where he chuses to reside when the affairs of his employment supersede his attendance; and where he happens to die; now all these concur for his house at Mersington, to sustain the confirmation by the Commissary of Lauder; for there he had fixed his estate; there his Lady and family dwelt; there he laboured a room; whither he retired in the vacance; and there he died; l. 7 C. de incolis, determines a principal dwelling, and defines it thus, ubi quis larum rerumque ac fortunarum suarum summum constituit, unde rursus non sit discessurus, nisi aliquid necessarium avocet; so it makes the principal domicil to follow his property; and if he by his station and trust be called to live alibi, that is not reputed to be animo remanendi, nor his free option, but rather ex necessitate officii, as Struvius in his Syntagma jur. civilis universi, tit. 25. says, quod principum consiliarii licet per decem annos in urbe degant non videntur ibi domicilium contraxisse, quia non animo in urbe domicilium constituendi, sed ratione officii ibi vivunt; and so it was decided in the Earl of Panmuir's case, No 60. p. 4847, where the Commissary of Brechin was preferred to the confirming his testament, before the Commissaries of Edinburgh, though he had lived half a year in Edinburgh; because he was only there attending his law business, and had the bulk of his family living at Panmuir. Some of the Lords moved, that both places might be reputed his domicil, and so both Commissariots were his forum competents, which would bring them in pari passu, each confirmation being in suo genere formal; but the vote was stated, Prefer the confirmation at Edinburgh or at Lauder; and the Lords being equal, six against six, the President decided it in favours of the confirmation at Lauder, and so preferred Sir John Swinton. If there had not been two confirmations, it was thought the testament confirmed at Edinburgh would have been sufficient warrant for the Commissioners of the Equivalent to have paid on it; but in the competition between the two, the Lords preferred that of Lauder as more legal.

Fol. Dic. v. 1. p. 330. Fountainhall, v. 2. p. 415.