Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 FOREIGN-ANNUALRENT.
Subject_3 A debt contracted abroad being sued for in this country, found that the interest must be restricted to 5 per cent, though a larger rate was allowed in the locus contractus.

John Wood of the Island of St Christopher's
v.
Ellen Grainger

Date: 23 June 1779

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[Faculty Collection, VIII. 153; Dict. 4532.]

Covington. In the case, Sinclair against Fraser, the House of Lords found that the decreet of a foreign Court was prima facie evidence of its being just, reserving every challenge against it. The foreign court gave no judgment as to the quantum of the attorney's claim: the decree is purely in absence; the person claiming must show that the charge is reasonable. The interest must be secundum leges loci.

Gardenston. If the defender had gone to the Island of St Christopher's, she would have been heard against the decreet in absence, and so also must she be heard here.

Kennet. I doubt as to annualrent, for none is given by the foreign court: at no rate can this demand go to annualrents of costs, for the demand is made from the time of the citation. Now, at that date, costs could not have been incurred.

Justice-Clerk. Here the objection is not, that the debt is not due, but that there is no sufficient evidence of the decree having been obtained. The costs must be modified secundum bonum et æquum.

Alva. Supposed that the costs had been taxed at St Christopher's.

President. In former times the Court would have refused to sustain action on this foreign decree; but, in the case of Sinclair and Fraser, it was otherwise determined by the House of Lords; and so also that House found in another case, Wilson, 1758. As to the costs, the foreign court had them not under cognisance: we cannot modify them as it did not modify them: the modifying the costs must be the act of the court that pronounced the decree: the decree has not found interest due, neither can we.

Kaimes. A foreign decree, if it appears formal, must be held pro verilate; but here the defender was not in the Island of St Christopher when the decree was pronounced, and therefore, as the law of England stands, no valid decree could pass against her. [This was not pleaded by the defender.]

Gardenston. If nothing is urged against the decree, we must hold the debt to be just, and then, according to our constant practice, we must decree interest from a year after the furnishings.

Elliock. That would be proper if the action was brought for payment of a debt; but the case, here, is an action for implement of a foreign decree, and we can regard nothing but that decree.

Monbodda. The foreign decree is probatio probata, and therefore interest ought to be awarded on it.

On the 23d June 1779, “The Lords found that action lay on the foreign decree; that no costs were due; that interest, at the rate of 5 per cent., was due from the date of the citation in this process;” varying Lord Alva's interlocutor.

Act. J. Anstruther, jun. Alt. J. M'Laurin.