Prescription, by the Law of which Country regulated.
The York-Buildings Company v. Richard Cheswell, and Others
Date: 14 February 1792 Case No. No 73.
The Scottish prescriptions not pleadable by debtors domiciled in England.
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In the ranking of the creditors of the York-buildings Company, claims having been made by Cheswell and others, upon bonds granted by the Company, on which no document had been taken for upwards of 40 years, prescription was objected by the Company.
The very same question formerly occurred between different classes of the creditors, when it underwent a very complete discussion, both in writing and in a hearing in presence. The Court then sustained the objection; York-buildings Company contra Delvalle, No 73. p. 4525. That judgement, however, was reversed, on appeal to the House of Lords; but the reversal was attended with this peculiarity, that the objectors not appearing in that high Court, the proceedings took place ex parte.
In the present case there did not seem to be any material addition made, to the arguments stated in the former one; and to these it is therefore sufficient to refer. But the Court now viewed the question in a different light. It was
Observed on the Bench; This is in all respects an English company, domiciled in England, and by their charter of erection fixed down to a residence there; so that in every instance of their being sued in this country, citation at the pier and shore of Leith was necessary. If, instead of being thus permanent in England, they had changed their place of residence to Scotland, and continued here during the 40 years, it might have been competent to them to plead our prescription, notwithstanding that England was the locus contractus. For it is the lex domicilii debitoris, which in this matter is the governing rule; and that law admits not this prescription. It is clear, that in England action on those bonds would lie against the Company. They are not therefore, in the words of the statute of 1469, ‘obligations of nane avail.’ The debtors surely would not be entitled to say so, for having brought their effects over the border. In all cases in which the Court has sustained our prescriptions against English debts, the debtors were considered as having acquired a residence in this country.
The Lords, therefore, having advised the cause on memorials, by a great majority repelled the objection of prescription.
For the Company, Montgomery et alii.Alt. Maconochie et alii.Clerk, Colquhoun.
Fol. Dic. v. 3. p. 221. Fac. Col. No 207. p. 436.
