Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk Of Session, One Of The Reporters For The Faculty.
Subject_2 FOREIGNER.

Carmichael
v.
Scott

Date: 6 December 1775

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Carmichael, an Englishman, being debtor to Scot, a Scotchman ratione originis, but a merchant at Newcastle in England, animo remanendi, having come to Scotland, as he alleged partly for recovery of health, and partly in the way of business,—Scott suspected that he had left England in order to defraud his creditors. He emitted an oath accordingly,—which he transmitted to his agent at Edinburgh; and he finding Carmichael there, and not satisfied with the account he gave of himself, emitted an oath of credulity in common form,—that he believed him to be in meditatione fugæ;—whereupon the Sheriff granted warrant to apprehend and incarcerate him, until he should find caution de judicio sisti. Upon this warrant Carmichael was apprehended, and incarcerated accordingly. He presented a bill of suspension on juratory caution, which the Lords passed without caution or consignation. They thought, that, in this case, there was no proper forum constituted against Carmichael: Scot's being a Scotchman or not, made no difference. But to allow a stranger occasionally in Scotland, sine animo remanendi, to be summarily arrested for a civil debt, without evidence of fraud, other than the oath of the creditor, would be attended with consequences very prejudicial to commerce: actor sequitur forum rei is a rule proper to be observed in every case. In this case, the debt by Carmichael to Scott was acknowledged.