Effect, in Scotland, of personal Obligation executed in a Foreign country, according to the Law of the place.
John Clerk, Advocate in Aberdeen, v. Alexander Brebner, Merchant in Aberdeen
Date: 20 December 1759 Case No. No 30.
English letters of administration equivalent to a license to pursue in Scotland.
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Brebner and Company, Merchants in Aberdeen, in December 1755, commissioned from Arthur Fletcher of London six hogsheads of vinegar; which were delivered to them accordingly.
Fletcher died in the end of the same month; and his sister, the wife of John Pott, obtained letters of administration from the prerogative-court of Canterbury, as executor to him; and granted a power of attorney to her husband.
In January 1756, Pott sent an account of the vinegar to Brebner, and desired payment at the usual time of six months after the furnishing.—Brebner, for himself and Company, thereupon wrote to his factor at London, 26th February 1756, in these words:
“We received per the Charles, Alexander Gordon master, the six hogsheads sent us per Fletcher; and as he is since dead, let his executors know, that we have given him credit for same, which shall be paid at the usual time of six months.”
Pott drew a bill upon Brebner and Company, payable to John Clerk, for L. 12: 4s. Sterling, as the price of the vinegar; which was protested for nonacceptance, and a process thereupon brought before the Sheriff of Aberdeen; who decerned against Brebner, his partner having, by that time, failed.
Pleaded for Brebner, in a suspension, The process was brought before the Sheriff without the pursuer's instructing a sufficient title, as the letters of administration were at no time produced there. And, 2do, Such letters, though they may have been sustained ad inchoandum litem, yet have not hitherto been found a sufficient title for the administrator to recover payment in Scotland, or to grant a valid discharge of a Scots debt.
Answered for the charger; No objection was made to Mr Pott's title in the inferior court; and therefore such objection comes now too late in the way of suspension. And, 2dly, The debt pursued for was contracted in England; the goods were there furnished, and the price was there payable, to an Englishman residing in England; and therefore a title sufficient in England ought to be sustained here. Besides, the suspender's letter of the 26th February 1756, in return to Mr Pott's, contained not only an acknowledgement of the debt, but a positive engagement to pay Fletcher's executor, which was a sufficient homologation of Mr Pott's title.
The Lords found the letters orderly proceeded, and expenses due; but ordained the charger to confirm before extract.
Act. Rae.Alt. Hamilton-Gordon.
Fac. Col. No 203. p. 364.
