Scottish Court of Session Decisions

Subject_1 FOREIGN.
Subject_2 DIVISION VII.

Prescription, by the Law of which Country regulated.

John Randal Taylor in Woolwich, and Cornelius Elliot Writer to the Signet, his Attorney
v.
Alexander and George Innes, Executors of the deceased Captain Peter Innes, late of the Train of Artillery

Date: 13 July 1768
Case No. No 69.

A person to whom furnishings were made in England came immediately thereafter to Scotland, where he resided till his death. In an action against his representatives, the defence of triennial prescription was sustained.

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Captain Peter Innes of the royal train of Artillery, in the course of his service, frequently resided at Woolwich in England, particularly he was there in the years 1757, 1758, and 1759. He came to Scotland in October 1759, where he resided till his death, which happened in March 1765.

After Captain Innes's death, John Randal, taylor in Woolwich, brought an action before the Court of Session, against Alexander and George Innes, as executors to Captain Innes, for payment of an account, commencing the 8th January 1757, and ending 22d March 1760. Against this claim, the defenders objected prescription, both upon the English statute of limitations, and upon the triennial prescription introduced by act 83d, parliament 1579. Lord Auchinleck reported the question to the Court, when additional memorials were ordered, a doubt having arisen how far the triennial prescription could be applied to a debt contracted in England.

Pleaded for Randal; Though it, in general, is true, that municipal laws are only binding within the territory of that state by which they are enacted; yet, in particular cases, the law of foreign nations is received, and deeds, executed in other countries, are sustained, if executed agreeable to the law of the country where dated, though defective in the solemnities required by the law of the country where they are made the ground of action. And, in Scotland, deeds executed in England, agreeable to the law of that country, have always been considered as effectual in the courts of this country, though defective in the formalities required by the law of Scotland; and such being the rule, with regard to the constitution of obligations, it seems to follow, that, when questions occur as to their subsistence, the law of the country where they were executed, should be the rule for determining. By the law of Scotland, payment of a bond cannot be proved by witnesses; yet the payment of an English bond has been proved by parole-evidence in this court; M'Morland contra Melvill, 28th June 1666, No 14. p. 4447; and several other decisions, to the same purpose; voce Foreign.

Agreeable to the principles upon which these cases were determined, every question relative to the endurance of obligations must depend upon the lex loci contractus; and, unless the law of that country has imposed a limitation which would bar action in the courts of that country, the debtor, by retiring to another country, cannot benefit himself by any prescription established there. Limitations, or prescriptions of actions, are derogatory to the common law of nations, and ought not to have effect against strangers who must be ignorant of them. In this case, Randal contracted with Captain Innes at Woolwich, who, at the time of the furnishings, had no forum in Scotland; and, by afterwards retiring into Scotland, he could not defeat the action now brought, as he or his administrators are, at present, unquestionably liable for the debt by the law of England. And, although a creditor must follow the forum of his debtor, as no man can be sued in a court, to the jurisdiction of which he is not subject, it does not follow, that the creditor's right must depend upon the particular laws of that country to which the debtor has retired.

The laws of every country is a matter of fact, and capable of proof when controverted. In the case of Cunninghame contra Brown, 18th January 1676, voce Proof, the Court allowed a proof to ascertain what was the law of England; but, in the present case, there can be no dispute as to the law of England; and, therefore, it ought to be the rule of determining, which is agreeable to the opinions of our lawyers; Dirleton's Doubts, voce Process against Strangers; Bankton, vol. I. p. 32.; and the decisions of the Court, Phillips contra Stamfield, No 57. p. 4503.; Assignees of Faulks contra Aikenhead, No 61. p. 4507.; Rae contra Wright, No 59. p. 4506.; Grove contra Gordon, No 64. p. 4510.; M'Neil contra M'Neil, No 68. p. 4517.; and, therefore, the lex loci contractus ought to be the rule of judging.

Answered for the defenders; The laws of England have no more force in Scotland than the laws of any other foreign country; and it is a maxim in law, that, extra territorium jus dicenti impune non pareri, l. ult. ff. de jurisd. And this Court, in its decisions, has always held that rule in view; Savage contra Craig, 27th January 1710, No 76. p. 4530; Bains, &c. contra Earl of Sutherland, 21st June 1749, Div. 9. Sec. 7. h. t.; and, in a number of questions between assignees under a commission of bankruptcy in England, and creditors in Scotland; Assignees of Dunlop, 6th March 1759, Div. 9. Sec. 4. h. t. And this general principle, that the law of the country, where the action is brought, must be the rule of judging, is particularly applicable to the plea of prescription; Voet. Lib 1. tit. 8. § 30. and Lib. 44. tit. 3. § 12. and has been so determined by this Court, as appears from various decisions, voce Foreign.

The defenders have no occasion to dispute that the lex loci contractus regulates the constitution of the contract; and, of course, a bond executed in England, agreeable to the English form, will be a good ground of action in this country; and a proof of payment made in England will be allowed by witnesses; but which would not be the case, even of an English bond, if payment was made in Scotland; because such proof is not admitted by the law of this country. When an action is brought in this country, prescription is an exception, which being competent by the law of this country, must be received; for, in such cases, it is not the lex loci contractus, but the lex loci, which is the law of the place where the action is brought, that must be the rule; Huber de conflictu legum divers. in divers. imperiis. And, as the pursuer has brought his action in this country, and the prescription known in the law of this country is pleaded in bar of that action, that plea must be sustained or repelled by the rules of the law of Scotland.

‘The Lords having advised the report made by the Lord Auchinleck, upon the 27th January last, with the memorials hinc inde given in, in obedience to the last interlocutor, they sustain the defence of the triennial prescription, assoilzie the defenders, and decern.’

For Randal, Alex. Wight. For Defenders, Cosmo Gordon. Fol. Dic. v. 3. p. 220. Fac. Col. No 70. p. 310.