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The Lords repelled the objection made in a ranking on the act 1695 to an adjudication, that it proceeded on bills and promissory notes granted by the common debtor, who was a professed papist, and that the onerosity was not instructed in terms of the said statute; in respect the act of Parliament only respected dispositions or direct conveyances.
Fol. Dic. v. 4. p. 37. Kilkerran, (Papist.) No 1. p. 365.*** C. Home reports this case:
Sidney having right to a bill and three promissory notes granted in England, by Sir George Maxwell of Orchardtown, to Morison of Prestongrange, upon which adjudication had been led against rhe estate of Orchardtown, after Sir George's death, brought a process of mails and duties, in order to obtain possession. Against which it was objected, That Sir George being popish, the granting the deeds was in prejudice of his protestant heir, as tending to carry off the estate from him, contrary to the above act of Parliament; and, although they bear value received, yet, by that law, they are held gratuitous, unless the granter declare the same were for value.
Answered; The Scots act cannot regulate deeds done in England; 2do, It only concerns gratuitous deeds, or dispositions in prejudice of their apparent heirs, and the benefit they may have by succession to the said popish persons; but neither the words, nor intention thereof, interdict papists from trade or commerce, or from borrowing of money, and contracting debt.
Replied to the 1st; Quoad the solemnities of writs, the locus contractus is the rule; and, if the usual solemnities of the place where the deed is executed be adhibited, it will be probative ex comitate every where; upon which foundation it is, that promissory notes, granted in England, are probative here; but, with respect to the quality of the person, his capacity to dispose of his real estate, the laws of the country where it is situated are the only rule, wherever the party himself may happen to sojourn or reside; there is no place for what the Doctors call comitas in statutis personalibus, especially where such laws are prohibitory; surely it would be absurd to suppose a Scots papist could get free of the act by going abroad; and what the defenders now plead for is supported by analogy; thus, an estate in Scotland cannot be disposed of on deathbed, although the deed should be executed in England or Holland, where no such law obtains.
In the next place, it was objected; That the adjudication is void, as being led for annualrents of the bill and promissory notes, bearing to be payable on demand, and no evidence, by protest or otherwise, that any demand was made in Sir George's lifetime.
Answered; Though there is no statute enacting, That promissory notes shall bear interest, yet, by the act 3tio et 4to Annæ, which extends the privilege of inland bills to promissory notes, it is declared, That, in any action thereon, the plaintiff shall recover his damage and costs of suit, in which damage is always included the interest of the value acknowledged to be received by the note, in the same way as in bonds for double of the sums received, wherein no interest is covenanted for; and, although the notes be payable on demand, there was no need to make any, as they bear value received; because it is the debtor's being possessed of the money, and the creditor's wanting the use of it, that gives rise to the damage.
Replied; By the foresaid act of Queen Anne, it is apparent that inland bills do not bear annualrent, unless protested within the time limited; therefore this bill, which was never protested, cannot bear annualrent, and much less can the promissory notes, which, at most, are but in the case of inland bills, bear any interest, since they never were protested; but it was unnecessary to enlarge on this head, seeing the Lords had the same question under their consideration this session, in the case of Murrays contra Murrays, where they found, that an English promissory note, not protested, did not bear annualrent.
The Lords repelled the objection of Sir George's being papist; and, as to the pluris petitio, they found, that the interest before the citation was not due, and therefore must be struck off.
