Prescription, by the Law of which Country regulated.
Susanna Philips and Joseph Short v. James Stamfield of Newmills
Date: 11 January 1695 Case No. No 56.
In an action for payment of furnishing made at London, the defence of triennial prescription was repelled.
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Whitelaw reported Susanna Philips and Joseph Short contra James Stamfield of Newmills, on a very nice point. These English merchants had furnished merchant-ware to Sir James Stamfield in 1679. When they now pursue his heir, for constituting the debt, it is objected, the debt is prescribed as to the manner of probation by witnesses, not being pursued for within three years after contracting. Answered, That being only a local and municipal statute, derogating from the common law of nations, it cannot take place against strangers, and the consuetudo loci contractus must be the rule. But England hath no such short prescription, and therefore this debt must be allowed to be proven by witnesses; and if it were otherwise, our merchants would neither get trust nor credit abroad, if strangers came to understand they would be cut off, where they had not pursued within three years. And they cited Sande, Decis. Fris. lib. 1. tit. 12. dec. 5. as also our own decisions, Galbreath against Cunninghame, No 2. p. 4430; and 15th February 1630, Ord against Duffs, voce Prescription; and 1st February 1665, Elphinston contra Rollo, voce Writ. Alleged on the other hand, That seeing this was designed to affect a Scots estate, the same ought to be judged and regulated by our own law; and nuncupative testaments, though valid in England, yet have no effect with us beyond L. 100 Scots; and a testament made in Holland, testing upon heritage lying in Scotland, though valid by their law, has been rejected by ours; And in a late case in 1691, between an English merchant and the Marquis of Montrose, (See Prescription,) the Lords refused to admit a debt contracted in Ireland after three years, to be proven by witnesses; and if this were allowed, they might draw infinite sums of money upon Scotsmen to affect their estates, if they might constitute debts against them by the testimony of English witnesses, at any time they please, and after all the witnesses are dead. The Lords thought the inconveniencies very weighty on the other side, and were clear as to what was furnished to gentlemen and others, that were not actual trafficking merchants, (which was Montrose's case,) the prescription as to the manner of probation would meet these debts, if not insisted for within the three years; but as to merchants, it was against the faith and credit of the nation, to obtrude that particular law against strangers ignorant thereof; and so by a plurality, seven against six, they found the prescription could not be obtruded against these pursuers, it being in re mercatoria, and between merchants, and done in England; and some added this special circumstance, that Sir James was an Englishman; and others alleged, that the buying in gross and wholesale, would not prescribe among ourselves in three years, but only where merchant goods are sold out in retail. See Prescription.
Fol. Dic. v. 1. p. 321. Fountainhall, v. 1. p. 657.
