tam; Nov. 9. 1672, Scot, (DICT. p. 7315); Gosf. July 1. 1673, Fork, (DICT. p. 7316.) 10. Privative jurisdiction, otherwise called peculiar, is that which belongs only to one court, to the exclusion of all others, whether the cause of such exclusion arises from the nature of the action to be brought before the court, (to which some writers have confined it,) or from its weight or importance. Thus, the jurisdiction of the court of session is privative in all actions for declaring property, in provings of the tenor, &c.; as that of the court of exchequer is in all revenue causes, except in so far as special statute has given the cognisance of them to justices of the peace. Commissaries are the only judges in the first instance, in all questions properly consistorial; and the high court of admiralty, in all maritime causes, whether civil or criminal. 11. Jurisdiction is either personal or patrimonial. Personal jurisdiction is that which is either revocable by the granter, or which, though no power of revocation be reserved in the grant, falls by the death of the grantee. Patrimonial, or heritable, is that which is truly part of a man's property, and descends as such to his heirs. Jurisdictions were granted originally on account of the fitness of the grantee himself, and consequently were personal: But on the introduction of the feudal plan, the king, when he made any grant of lands for military service, conferred on the grantee a certain degree of jurisdiction within the lands granted, along with the lands themselves, ex. gr. of sheriffship, regality, or barony; and as the lands were made over, not only to the grantee, but to his heirs, the jurisdiction annexed to them became also heritable. Because this kind of jurisdiction was incident to, and followed the lands or territory to which it was annexed, not only through the grantee's heirs, but his singular successors, it got the name of territorial. Several jurisdictions, however, after they ceased to be territorial, continued heritable: For though our sovereigns soon found it necessary to resume sheriffships from the proprietors of the territory to which that jurisdiction was originally annexed, vid. infr. Tit. 4. § 1., and to grant them to others who had no property in the lands; yet the new grant was frequently bestowed not barely to the grantee personally, but to his heirs. 12. The which attended these heritable jurisdictions bepower came at last formidable to the state, and enabled some of our first families to bid open defiance to the law. It was for this reason, that immediately upon the forfeiture of the Earl of Douglas, June 10. 1455, (see Black acts, fol. 34.) it was statuted by 1455, C. 43., that no regality should be granted for the future without the authority of parliament; and C. 44. said year, that no office should be given afterwards in fee or heritage. Our sovereigns nevertheless continued to make grants of heritable jurisdictions; most of which were confirmed by parliamentary ratifications; and others were, without such confirmation, strengthened by the immemorial exercise of the jurisdictions, till it became at last the general opinion, that those statutes had lost their authority, Mackenzie's Obs. on 1455, C. 43. All heritable offices and jurisdictions, without distinguishing whether they were granted before or after the said two acts in 1455, were, by the treaty of Union, art. 20. reserved to the owners as rights of property; but it does not certainly appear, whether these acts were then understood to be in force or not, as the offices and jurisdictions were reserved in the same manner only as they were then enjoyed Book 1. Jurisdiction ei ther proper or delegated. Delegated jurisdiction understood to be the act of the judge who delegates; consequently no appeal lies to the principal judge from the sentence of his depute. enjoyed by the laws of Scotland. Several heritable sheriffships and stewartries having accrued to the crown by the rebellion in 1715, the parliament, from the same reason of state, declared, by the inquiry act 1° George I. C. 50. that these forfeited jurisdictions should not be alienable by the crown, either heritably or during life; and now by act 20° George II. C. 43. to be afterwards more fully explained, all heritable jurisdictions, except those of Admiralty, and a small pittance reserved to barons, are either abolished, or resumed and annexed to the crown. By our present law, therefore, almost all jurisdictions, both supreme and inferior, are again personal, more agreeably to the original nature and condition of jurisdiction. 13. Jurisdiction is either proper or delegated. Proper jurisdiction belongs to a judge or magistrate himself in virtue of his office. Delegated is that which is communicated by the judge to another, who acts in his name, called a depute or deputy. One named by a deputy who has himself the power of deputation, is called a substitute. No judge has the right of appointing deputies, unless it be contained in his grant; for an office which requires personal qualities, cannot be delegated by the grantee to another without a special power. Such power has been always expressed in the personal grants of sheriffship, stewartry, and admiralty; but justices of the peace, and magistrates of boroughs, have no power of deputation. In heritable jurisdictions, though the first grantee should have possessed every qualification proper for a judge, the heir succeeding to him might have been quite incapable of discharging the office in person; for which reason powers were given by 1424, C. 6. to those who enjoyed patrimonial jurisdictions, to appoint deputies for whom they should be answerable. The deputies thus authorised, had, by the nature of their commission, the whole jurisdiction communicated to them which was before in their constituents; for there is no limitation in the statute relative to the power of the deputies. The opinion, therefore, that in deputations by barons, the potestas gladii was not delegated to the baron-bailie, appears ill founded, and was certainly contrary to practice. A passage quoted from Balfour in support of it, p. 548. is plainly misunderstood; and other delegates, ex. gr. sheriff-deputes, have always judged in crimes, in virtue of the power of appointing deputies, expressed in the sheriff's commission. The sheriff's appointed in pursuance of the late jurisdiction-act are improperly styled deputies in that statute: For they have a proper, not a delegated jurisdiction; they are named, not by the high sheriff of the county, but by the king; and they are authorised to appoint deputies under them, who are called in the act substitutes, to exercise jurisdiction, either over the whole country, or in a particular district. 14. Delegated jurisdiction is not, in the judgment of law, the jurisdiction of the deputy who acts; for he has no proper jurisdiction; but of the judge who appoints him, and from whom alone he derives authority. Hence a deputy or substitute acts at the peril of the principal judge, 1424, C. 6.; 1469, C. 26. near the end; for the principal judge, who is the only person considered in law, must be accountable for the actions of the deputy, as for his own. makes a material difference between proper and delegated jurisdiction. In causes which are first brought before a proper jurisdiction, subordinate to another, ex. gr. before an inferior commissary, the cause must, or at least may, where any of the parties thinks himself aggrieved by the decree, be carried to the commissaries of Edin This burgh, burgh, in respect of whom the jurisdiction of the inferior commissary is subordinate, before it comes to the supreme court; whereas in delegated jurisdiction it must be carried from the deputy,—not to the principal judge, vid. supr. § 6., for no inferior judge can, without express powers, review a decree pronounced by himself,-but directly to the court of session. By this rule, the decrees of admiral-deputes ought to be carried from them, in the case of review not to the high court of admiralty, but to the court of session, because the judges deputed by the admiral are deputies in the most proper sense of the word; but the judge of the high court is, by special statute, 1681, C. 16. authorised to review the sentences of all the admiral-deputes. 15. Sometimes persons are delegated by a special commission to judge in a particular cause, after which their power ceaseth. This was the case of messengers, who were appointed judges in apprisings, as sheriffs in that part, in virtue of the warrant contained in the letters of apprising; and it is still the case of macers of the session, when, upon a remit from that court, they judge in the service of heirs 17; and of commissioners appointed by a judge to take the oaths of parties or of witnesses, in any action brought before him 18. Those judges who, by the nature of their office, have a fixed and determined jurisdiction in all actions of the same general nature, are called judges-ordinary, whether they be supreme or inferior, 1487, C. 105.; and they are in that statute opposed to the privy or secret council, who had no stated terms or places of sitting, and whose jurisdiction was confined to certain special and uncommon actions or complaints. TITLE II. Jurisdiction-de legated for a particular cause. tion ratione domicili. 16. Since no judge can pronounce sentence on persons or subjects Civil jurisdicwithout his territory, civil jurisdiction cannot be founded unless the defender either, first, reside within the judge's territory, or, 2dly, be possessed of some estate or subject within it. In the first case, the judge's jurisdiction is said to be founded ratione domicilii. A domicil is the dwelling-place which a man chooses for a fixed abode to himself and his family: a pleasure-house, therefore, to which he goes only by starts, is not a domicil; and far less a friend's house, or an inn 19. To prevent disputes upon this point, a rule is received by custom, That where one has resided with his family for forty days immediately preceding his citation, is to be deemed his domicil as to the question of jurisdiction 20. Where a person has twodifferent VOL. I. 17 I By Act of Parliament 1. and 2. Geo. IV. c. 38. § 11., the remit to macers to judge in services is prohibited; and it is enacted, that the commission for proceeding in services shall be granted to the Sheriff-depute of Edinburgh, or his substitute. Vide infr. B. 3. t. 8. § 64. note. "A person employed to perform any functions by commission from the Court in a depending process, is entitled to claim payment from any one of the persons concerned in procuring his appointment, in solidum; Wilson and Others, petitioners, 10th July 1813, Fac. Coll. 19 Such temporary residence may not constitute a man's principal domicil; this implying, as the text observes, "a fixed abode to himself and his family." But with reference to that legal domicil, which is sufficient to found jurisdiction, it has been decided, that "a domicile, by forty days' staying at any place, though in an inn or "hired chamber, might be sufficient to sustain a citation made there," though "not to "constitute a domicile whereupon denunciation and escheat might follow, or whereupon the confirmation of a defunct's testament might fall to the commissar of that “place; but as to these the principal domicile behoved to be considered;" Stair, 20th November 1672, Paterson v. Fermour, Dicт. p. 3724. 66 20 It does not seem necessary that the person have resided" with his family." The place where, indeed, he has thus established himself, and where, when occasionally absent, he leaves his family, is, of course, to be considered his domicil in a still stricter and more proper sense. But there seems no reason to doubt, that, as to the question " of BOOK I. Civiljurisdiction ratione rei sita. different houses, in different jurisdictions, which appear equally en-- 17. Civil jurisdiction is founded, 2dly, ratione rei sitæ, if the subject claimed by the pursuer lies within the territory, whether the defender resides within it or not, Durie, Nov. 28. 1635, Williamson, (DICT. p. 4815.) And indeed if the subject in question be immoveable, the judge of the territory where it is situated is the sole judge competent, in so far as he hath the cognisance of heritable rights; for things that are immoveable are incapable of shifting places, and must therefore be restored in that place where they lie, and by the warrant of that judge whose jurisdiction reacheth over them. As this reason fails in personal actions founded barely on obligations relative to land, which may be fulfilled any where, a judge's jurisdiction reacheth over a person residing within his territory who is sued for fulfilling an obligation for granting a conveyance or a lease of lands, though the lands contained in the obligation should be situated without the territory. No suit can proceed against a defender till he be lawfully summoned to appear in judgment; neither can a judge issue a warrant to cite one who resides in another territory: Where therefore one whose domicil is not within the territory is to be sued before an inferior court ratione rei sitæ, the pursuer of jurisdiction, his own personal residence for forty days, though without his family, is sufficient to constitute a legal domicil against him. 66 By Act of Sederunt, 14th December 1805, § 1., it is enacted and declared, "that "where any person against whom legal diligence is meant to be executed, or who is to be "cited as a party in any judicial proceeding, has left the ordinary place of his resi"dence, which may render it doubtful whether he is within the kingdom of Scotland. or not, and, consequently, whether the charge or citation against him ought to be "executed at his dwelling-house, or at the market-cross of Edinburgh, and pier and "shore of Leith, when he is not personally found, it shall in time coming be held and "presumed, that the said person, after forty days' absence from his usual place of re"sidence, but not sooner, is forth of the kingdom of Scotland; and therefore, that "within the said forty days the citation or charge may be at his late dwelling-house, "but after that period must be at the market-cross of Edinburgh, and pier and shore "of Leith, unless he be personally found, or, prior to the execution, shall have taken. up some other known and fixed residence within Scotland.” 66 This Act of Sederunt having been passed relative to the Act of Parliament 33. Geo. III. c. 74., it may be doubted whether it did not expire with the statute. 2. Bell's Commentaries, p. 175 and 179. in not. But it has been suggested by Mr More, with regard to the particular clause quoted above, that it "may be considered "as a declaration of the common law upon the subject to which it refers;" Erskine's Principles, (11th edit.) § 9. h. t. in not. 21 See also Stair, 11th February 1674, Macculloch, DICT. p. 3701; Fount. 13th › March 1707, Irvine v. Deuchar, DICT. p. 3703; Edgar, 30th July 1725, Home, DICT.. p. 3704; and Douglas and Heron, 23d November 1779, DICT. p. 3700. The rule is different as to the domicil where confirmation of one's moveable succession must take place; the principal domicil being there exclusive. See infr. B. 3. t. 9. § 29. 22 Unless his wife be the defender; for then, wherever she may actually reside, her legal domicil is inseparable from her husband's; French, 13th June 1800, Fac. Coll. DICT. V. Forum competens, Appendix, No. 1., where it was laid down, in the case of the wife's residence being abroad, that she should be "cited both at market-cross, and pier "and shore, and at the house of her husband." Perhaps, however, the above rule ceases TITLE II. son has an estate in this kingdom, but resides in another. pursuer must apply to the court of session, whose jurisdiction extends over the whole kingdom, for letters of supplement, which are granted of course, containing a warrant to cite the defender to appear before the judge of the territory where the controverted subject lies, Nov. 28. 1635, Williamson (sup. cit.) *. This method is also followed, where one resides without the territory, who is to be cited, not as a principal defender, but merely for his interest 23. 18. Where the party to be sued resides in another kingdom, and Where a perhath an estate in this, the session is the only competent court in questions concerning such estate; since that court is the commune forum to all who reside abroad 24. But as no court of Scotland can grant warrant for a personal citation against such as reside without this kingdom, foreigners, if they have a land-estate in Scotland, are considered, in respect of all claims on that estate, to be lawfully summoned as defenders, by what is styled an edictal citation, i. e. a citation published at the market-cross of Edinburgh, and pier and shore of Leith: For since the locus rei site is the only place where questions of immoveable rights can be tried, the necessity of law supports that only manner of citation which is practicable. Nor can this afford any just ground of complaint to the defender: For whoever enjoys a real estate in a country, has a forum there, or a court where all questions concerning that estate may be discussed and decided; and consequently he ought to employ one in his absence to look after it, and appear for him in all actions which may be brought against him concerning it. But this sort of action cannot be said to be directed against the person of the defender, over which the judge hath no jurisdiction, but only against that part of his estate which lies within the territory, Durie, Nov. 15. 1626, Galbraith, (DICT. p. 4430, and 4813.); Ibid. Dec. 8. 1626, Lo. Blantyre, (DICT. p. 4813.). 19. When a foreigner, who is actually abroad, hath no other than moveable effects within this kingdom, he is accounted so little subject to the jurisdiction of its courts, that no action can be brought against him, till those effects be attached by arrestment, called arrestum jurisdictionis fundandæ causa, Harc. 487, (Young against Arnold, DICT. p. 4833 25.) This arrestment may be laid on at the suit of • See as to the origin and nature of Letters of Supplement, Kames's Law Tracts, Tract 7. History of Courts. ceases to hold, where there is a formal and unrevoked deed of separation between the parties. See what was thrown out on this subject, both by the Lord Chancellor and Lord Redesdale, in Lindsay v. Tovey, 24th May 1813, 1. Dow, 117. 23 Letters of Supplement have also been granted, to compel the appearance of a witness before an inferior jurisdiction, where that witness, (who then resided within the inferior jurisdiction,) had been regularly cited under a first diligence, but had removed beyond the territory before second diligence could be executed; A. v. B. 27th February 1813, Fac. Coll. 24 Durie, 11th March 1624, Lamb, Dicr. p. 4812; Edgar, 29th December 1724, Haldane, DICT. p. 4818. 25 As to the competency of a jurisdiction founded in this way, a most important distinction is to be observed, between such questions as originate in a mere ordinary patrimonial claim for the payment of debt or the performance of a mercantile contract and the like, and that other class of cases, where the personal status and character of the individual is sought to be affected; as, for example, all questions of legitimacy, marriage, divorce, &c. In a case of this latter kind, "it was observed on the bench,” that the "forum ratione rei sitæ, in respect of an arrestment used ad fundandam juris"dictionem," was not applicable," where the conclusion is not founded on a document "of debt, but to declare, in a contract the most personal of any, that a man in Ireland is "a married man."--" The source of that species of jurisdiction in this and other com"mercial countries was utility, and the facilitating the recovery of debts. It is properly Arrestment jurisdictionis fundanda causa. Caution judicio sisti et judicatum solvi.. |