Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR PETER WEDDERBURN, LORD GOSFORD.

Jacob Jamart, Merchant, Bourdeaux,
v.
Henrie Jossie

Date: 27 February 1672

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In a reduction and suspension of a decreet, obtained at Jamart's instance against Jossie, for the sum of 9000 livres, upon this reason,—That the decreet was for null defence; and if he had compeared, he had a relevant defence to elide the libel; viz. That the ground of the debt being contracted at Bourdeaux, by the custom of which place, where a debtor to several persons makes a disposition of his whole estate,—the major part of the creditors accepting thereof—it is sufficient to exoner him, not only at their hands who accept, but likewise at the hands of them who refuse; and accordingly Jossie had subscribed a concordate with the most part of his creditors, and had consigned his whole estate for their use: whereupon the Parliament of Bourdeaux, by a decreet, had interponed their authority for the suspender's liberation; and so it was res judicata in France, according to their law and custom; which, ratione loci contractus, ought to regulate this case.

It was answered for Jamart the charger, That this allegeance, not being verified instanter, could not be received to stop justice and a legal procedure here; the suspender having had more than sufficient time to procure an extract of the sentence, if any such was, during the dependence of the first process, wherein decreet was given by the bailies of Edinburgh: And albeit it were produced, yet it could not have furnished any such defence against Jamart; because such a custom, albeit it were verified, was only municipal, and to take effect within the territory and jurisdiction where it was in force; and that, as to such estate and goods as were possessed by the debtor within these bounds where the law was obligatory, and whereof the debtor had the benefit as a native or denizen. But so it is, that Jossie being a Scotchman, and residing at Bourdeaux only as a factor or merchant, having no domicile of his own, after contracting of this debt fraudulently retiring to Scotland, where there is no such custom or privilege, being pursued for a most just debt, that the law of this kingdom may have execution against his estate here; the said pretended custom of France can never be respected, no more than a merchant here having an estate in France, and being incarcerated in Scotland is liberated upon a cessio bonorum; which could not hinder any of his creditors in France to pursue him there, and obtaining a decreet there, to execute the same against any goods he hath in France. And if it were otherwise, it would open a door to infinite fraud and, circumvention; which would destroy all trade and commerce with strangers, it being easy to a merchant or factor, who is in credit and reputation abroad, clandestinely, by bill of exchange and loading of commodities under the name of another, to transmit his estate, and then retire himself.

The Lords did decern against Jossie, and found the letters orderly proceeded; in respect that there was nothing produced for instructing of that pretended custom; and that there was decreet given thereupon by the Parliament of Bourdeaux: but superseded the extract thereof until the next session,—that, if the custom and authority of Parliament interposed were instructed, they might then resume the foresaid debate, and decide in jure if it were obligatory here, as being res judicata.

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