Scottish Court of Session Decisions

Subject_1 PART I.

PRESCRIPTION.

John Boog and Attorney,
v.
The Common Agent in the Ranking of Margaret Watt's Creditors

Date: 11 December 1800
Case No. No. 5.

The triennial prescription found not to apply to a debt contracted in England, by a Scotsman who never returned to Scotland, but who left his wife, and had heritable property there, at his death.

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Daniel Morgan was by birth a Scotstman, and resided mostly in Scotland till the end of the year 1790, when his affairs having gone into disorder, he went to London with the view of bettering his fortune; got the appointment of steward to an East India ship; but died on his passage to India.

On the 14th December 1790, while Morgan was in London, he purchased, on credit, from John Boog, goods to the value of L. 41, 14 s. Morgan never returned to Scotland after making this purchase.

Before leaving Scotland, he had executed a settlement of some heritable property in favour of his wife Margaret Watt, burdened with the payment of all his debts.

On the 13th January 1795, Boog obtained a decree in absence, before the Court of Session, against Margaret Watt, as representing her husband, for payment of the L, 41, 14 s. More than three years had elapsed from the date of the furnishings before the date of citation in this action.

Margaret Watt's affairs having also become embarrassed, a ranking and sale of her heritable property was brought, in which Boog having produced the decree in absence as his interest, the common agent objected, that the claim on which the decree proceeded had fallen under the triennial prescription established by 1579, c. 83. And further,

Pleaded: A debtor can be sued only before those courts to whose jurisdiction he is subject, and judges must decide according to their own municipal laws. Now, Morgan never acquired a domicil in any other country but Scotland, and therefore his debts by open account, wherever contracted, must be subject to the Scots triennial prescription; 7th July 1755, Trustees of Renton, No. 67. p. 4516.; 13th July 1768, Randall No. 70. p. 4520.; 4th February 1772, Barret against the Earl of Home, No. 72. p. 4524.

Answered: Had Morgan returned to Scotland after contracting the debt and remained there three years, the objection might be well founded; but as he was never afterwards in Scotland, the substance of the debt must depend on the lex contractus. If Morgan had been cited intra territorium of the Courts of England, he must have submitted to the English law, and he must also have done so had he arrived in India, where the same law prevails, at least among British subjects. It is absurd to suppose, that an English merchant, under the present circumstances, should lose his debt, because he was ignorant of the Scots triennial prescription; Ersk. B. 3. Tit. 7. § 48.; 14th February 1792, York-Buildings Company against Chesswell, No. 74. p. 4528.

The Lord Ordinary “sustained the objection.”

On advising a reclaiming petition, with answers, it was

Observed on the Bench: To give room for the operation of the Scots prescription, the debtor must have an actual residence in Scotland for three years subsequent to the contraction of the debt: Morgan in this case had only a forum. The flaw in the objector's reasoning arises from his not attending to this distinction. It seems extremely doubtful whether the case of Barret against the Earl of Home was well decided.

The Lords, by a great majority, altered the interlocutor of the Lord Ordinary, and repelled the objection.

Lord Ordinary Balmuto. For Common Agent, Williamson. Alt. Semple. Clerk, Menzies. Fac. Coll. No. 206. p. 474.