Scottish Court of Session Decisions

Subject_1 FOREIGN.
Subject_2 DIVISION VII.

Prescription, by the Law of which Country regulated.

Jean Thomson and John Hay, Executors of John Hay Taylor in London
v.
The Earl of Linlithgow and his Curators

Date: 16 July 1708
Case No. No 57.

An accompt, though contracted in England, was found to prescribe according to the Scots law, where payment was pursued for.

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In a pursuit on the passive titles at the instance of the Executors of John Hay, against the Earl of Linlithgow and his Curators, for an account contracted by the late Earl at London, whereof the last article is in the 1695, it was alleged for the defender, That the account was prescribed, not being pursued within three years.

Alleged for the pursuers; 1mo, Prescription was interrupted by the execution of a general charge to enter heir in January 1697, within two years of the last article of the account, with a summons for payment executed in May 1698; which summons must be an effectual interruption; because, deducting a year's time after the late Earl's decease, during which the pursuers could not insist cum effectu, in respect of the defender's privilege of annus deliberandi, there are not three years betwixt the citation and the last article of the account. 2do, The triennial prescription cannot be obtruded, because the debt pursued was contracted in England, where no such prescription takes place; for in personal contracts, the law of the locus contractus must be the rule; merchants or tradesmen who trust foreigners, not being obliged to know the municipal law and customs of the place, where the debtors reside.

Answered for the defenders. The execution of the general charge could have no effect of interruption, because it mentions no particular debt, nor contains any conclusion for payment; nor yet could the summons interrupt, not being executed within three years. The annus deliberandi is not to be regarded; in respect the defender was served and retoured heir to the late Earl within a few months after his decease. 2do, A pursuit in Scotland against a Scots man, can only be determined according to the Scots law.

The Lords sustained the defence of prescription. See Prescription.

Fol. Dic. v. 1. p. 321. Forbes, p. 268. *** Fountainhall reports the same case:

The Relict and Children of John Hay taylor in London, as his executors, pursue the Earl of Linlithgow, as heir to his uncle, for payment of L. 40 Sterling of a taylor's account owing to them by the last Earl, and offered to prove the furnishing of the work by witnesses. Alleged, The account is prescribed, the last article not being within three years of raising the process, and so can only be proven scripto vel juramento by the act 1579. Answered, Ought to be repelled, because an account taken on in England, where no such law takes place. 2do, Interrupted by a general charge to serve heir, executed long within the three years. 3tio, I could not legally pursue within his year of deliberation; and if that be deducted, both the charge and the summons are within the three years. Replied to the 1st, The law of Scotland introducing a triennial prescription of tradesmen and merchants accounts quoad modum probandi, must only regulate this matter, being betwixt Scotsmen, and pursued here. To the 2d, The general charge cannot interrupt, eo ipso that it is general, and does not bear a special condescendence of the debt for which it was sought, and then it might have done, as was found in Preston's case contra Lord Ballantyne, for supporting an inhibition served on such a charge. To the 3d, The annus deliberandi can never be deducted here, for two reasons, 1st, because the Earl was served heir to his uncle within the year, which was a plain renunciation of the benefit of that delay. 2dly, You could have pursued me within the year upon the other passive titles of behaviour as heir, vitious intromission, &c. Replied, A general charge may not be a sufficient interruption, where the party libels more grounds of debt than one; but here the summons contains nothing but this single account of L. 40 Sterling, and so the charge can be applied to no other subject but to this allenarly. And as to the annus deliberandi, I was not bound to know you were served heir; and the most this argument could operate, was to deduct these months after the service, but quoad the months before, they cannot be counted in the prescription. Though these three points were very considerable, and that minority does not stop these shorter prescriptions, yet the Lords repelled them all, and found the account prescribed quoad probation by witnesses. See Prescription.

Fountainhall, v. 2. p. 454.