Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By JAMES BURNETT, LORD MONBODDO.

Creditors of Captain Wilson
v.
The Assignees on his BANKRUPTCY*

Date: 7 July 1758

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Certain creditors of Captain Wilson arrested, in the hands of Captain Johnston, a native Scotsman, but who resided in Ireland, certain debts due by him to Captain Wilson. This arrestment was laid on at the market-cross of Edinburgh, pier and shore of Leith, and also a decreet of forthcoming was taken in absence against Captain Johnston, both a considerable time before the commission of bankruptcy was issued against Captain Wilson: but the jury in England found an act of bankruptcy before the date of the arrestment; and the assignees upon the commission of bankruptcy are now competing with these arresters for the sums due by Captain Johnston.

It was objected to the arrestments, 1mo, That they were null and void even by the law of Scotland. 2do, That, supposing them valid by the law of Scotland, the assignees were preferable to the arresters.

As to the first point, The President said it was now established that both the locus originis and the locus rei sitæ gave a forum, so that, as Captain Johnston was both a native Scotsman and had an estate in the country, he was in all respects amenable to the Court; for he thought the animus remanendi was too slender a thing, and by its nature too uncertain, to make the jurisdiction of a Court depend upon it, so that he thought even the forum originis was sufficient to make him subject to the jurisdiction of the Courts here, without distinction whether he was abroad animo remanendi or not. But he said he thought debts in Ireland, such as he accounted the debt in question to be, could not be affected or attached except by diligence issuing from the courts there, according to the laws of that country; for though the rule laid down by the doctors of the civil law was that mobilia non habent situm, yet that had been departed from in our practice, particularly in the matter of succession, and it had been found that mobilia, particularly nomina, habent situm in that country where the debtors reside, and which is also the locus solutionis, if there be no paction to the contrary, and where execution must be sued for. According to this rule, bonds, as well moveable as heritable, due by debtors in Scotland, will go in succession according to the rules of our law, suppose the creditor had his residence and died in a foreign country, where the rules of succession were different ; and he thought the same rule should obtain in the matter of diligence affecting those nomina, viz. That the law of the country where the debtors reside should be the rule; and he considered the case to be the same as if Captain Johnston had had in his hands cattle, or any other moveables belonging to Captain Wilson. He therefore thought that, in this respect, the arrestment was not valid to attach or hold the subject, which, lying out of the territory, could not be affected by the diligence of the Scotch law.

As to the other point, he was very clear that the retrospect of the English statute could operate nothing extra territorium ; and my Lord Coalston went so far as to say that the assignment, being the operation of the law in England and not the deed of the party, could not give the assignees a title to sue in the Courts of Scotland, though he acknowledged it had been frequently otherwise determined.

The Justice-Clerk and Prestongrange agreed with the President in the conclusion, but differed in the principles. They thought, as to the first point, that the arrestment was valid and effectual, and such whereupon the arrester could have recovered a decree of forthcoming against Captain Johnston, upon which he might have adjudged his estate in Scotland; but they thought that the English statute of bankruptcy was to be the rule in this case, for this reason,—that, according to the doctrine of Voet, in his treatise de statutis, and of other doctors of the civil law, mobilia non habent situm, but follow the person of the creditor, and are governed by the laws of the country where he has his domicile animo remanendi; and if this be true of moveables in general, it will hold more especially of nomina, which, being res incorporates, have properly no situs, but are attached to the person of the creditor et ossibus ejus inhærent, and are to be considered as if the money had been paid to Captain Wilson, and was in his coffers.

On the other side, it was said by Lords Coalston, Bankton, and Auchinleck, that the President's opinion seemed to contradict itself; for he admitted that Captain Johnston had a forum here, and that an arrestment, by the law of Scotland, at the market-cross of Edinburgh, pier and shore of Leith, was valid : if so, why may not a decreet of forthcoming go against him? And if he pays upon such decreet, surely that will be a good defence to him against paying over again in Ireland, or any other country in the world, as much as voluntary payment. Nor is the case parallel of the corpora of goods belonging to Captain Wilson being in the possession of Captain Johnston, for these corpora, not being within the territory, could not be attached by the diligence of our law ; but Captain Johnston's person being here fictione juris, any personal decree could go against him ; and the consequence of the President's doctrine is, that if my debtor's debtor resides in a foreign country, though he may be a native of this and have an estate in it, yet I cannot get at him otherwise than by sueing him in that foreign country, which in some cases may be impracticable, as in England, where there is no method known of attaching a debt due to my debtor. If this were law, it would be a great bar to commerce and credit, by depriving the subjects of this kingdom, in many cases, of the benefit of the salutary diligence of arrestment.

With respect to Prestongrange and Justice-Clerk's opinion, they said it went so far as to set aside even arrestments of Scotch debts in the hands of Captain Wilson's debtors residing here; that the rule of law upon which their opinion was founded was departed from by our practice in the matter of succession, and, a fortiori, it should be so in this case where the consequence of it would be to annul legal procedure, and to deprive men of the benefit of legal diligence.

Upon a full hearing in presence, the assignees were preferred by a small majority.

* This and the following case were omitted in their proper places.