Scottish Court of Session Decisions

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

Monsieur Jamart, Frenchman,
v.
Henry Jossie

Date: 3 July 1672

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In the foresaid action, Jamart against Jossie, It being alleged for the defender, That he ought to be absolved, because, by the custom of Bourdeaux and Act of Parliament thereof, whensoever a debtor became insolvent, the greatest part of his creditors entering into a contract of policy, whereby the debtor dispones to them his estate, it secures him against all the rest of the creditors, albeit they be not consenters, that they can never use either personal execution against him, nor pursue for any part of his estate, but to be divided amongst them all: Likeas the said creditors, who had contracted, did compear, by their proctors for their interests, and concurred for the defender.

It was replied, That albeit the said custom of Bourdeaux might be binding against all Frenchmen who lived within the jurisdiction of the Parliament of Bourdeaux, yet the defender being a Scotsman, and after great trust given him in Bourdeaux, for which he subscribed bonds, being retired to Scotland, where he had means and estate, he was liable in Scotland, both as to personal and real execution.

The Lords did repel the defence, and found, That if these particular customs should take place and be sustained here, or without the jurisdiction where they were in force, it would destroy all trust and commerce amongst merchants, who might easily transport themselves to other places, after they had sent away their stocks and commodities for which they had gotten trust upon their personal bond and security.

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