United Kingdom House of Lords Decisions

You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> John Wilson, Collector of His Majesty's Customs at Stockton, in the County of Durham; and Richard Swanston, Solicitor of Customs, His Attorney. v. Robert Burnton, and James Chalmers, both Merchants in Edinburgh [1758] UKHL 2_Paton_11 (20 February 1758)
URL: http://www.bailii.org/uk/cases/UKHL/1758/2_Paton_11.html
Cite as: [1758] UKHL 2_Paton_11

[New search] [Printable PDF version] [Help]

SCOTTISH_HoL_JURY_COURT

Page: 11↓

(1758) 2 Paton 11

CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND.

No. 3.

[Mor. 4549.].

John Wilson, Collector of His Majesty's Customs at Stockton, in the County of Durham; and Richard Swanston, Solicitor of Customs, His Attorney. Appellants

v.

Robert Burnton, and James Chalmers, both Merchants in Edinburgh, Respondents

House of Lords, 20th Feb. 1758.

Subject_Foreign Decree. —

Effect of foreign decree in seeking its execution in the Courts of this country.

Jan. 7, 1756.

The Court of King's Bench in England, in a suit brought

Page: 12↓

there by Scotch merchants, against his Majesty's collector of customs at Stockton in Durham, for delivery of wheat, which belonged to them, and which was shipped from Leith to New Zealand in their ship, but which had stranded in the course of its voyage near that port, and the wheat saved by the collector and others, and taken possession of, subject to a claim of salvage, had pronounced judgment in favour of Wilson with £60 costs. Wilson then raised action against the respondents for the £60 costs, in the Court of Session, within whose jurisdiction the respondents resided; and founded on his decree in England, with the view of obtaining decree conform to the decree given in the Court of King's Bench. In defence, it was stated that the decree was iniquitous. In reply, it was answered, that it was not competent to enquire into the merits of that decree; and that it must be deemed quoad res judicata pro veritate habitur. On report to the whole Lords, the Court refused to give execution for the £60 sterling of costs, awarded by the Court of King's Bench, and sustained the defence founded on the iniquity of the decree.

Against this interlocutor the present appeal was brought.

This day being appointed for the hearing counsel, upon the petition and appeal of John Wilson, complaining of an interlocutor, 7th Jan. 1756, made on behalf of Robert Burnton and James Chalmers, and praying reversal of same; to which appeal the said Robert Burnton and James Chalmers have not put in their answer, though peremptorily ordered so to do. Counsel were accordingly called in to be heard; and one counsel only appearing for the appellants, (none appearing for the respondents); he was heard to state and argue the case on behalf of the appellants. And having prayed a reversal of the interlocutor complained of, the said interlocutor was read; and then the counsel was directed to withdraw, and due consideration had of what was offered.

It is ordered and adjudged, that the said interlocutor complained of be reversed; and it is hereby declared, that the respondents are liable to answer and pay the sum of sixty pounds sterling costs, awarded by the Court of King's Bench: And it is further ordained, that the defence of the said respondents be repelled; and that the said respondents do accordingly pay the said sum of sixty pounds to the appellants, together with their expenses of the suit in the Court of Session; and that an account thereof be given in. And it is further ordered,

Page: 13↓

that the said Court of Session do give proper directions for carrying this order and judgment into execution.

Counsel: For Appellants, C. Yorke.

Note.—“The judgment was reversed, singly upon this footing, as I am informed, that in England the decrees of sovereign courts abroad are put in execution by the Courts of Westminister Hall, without admitting any objection against them.”—Kames' Decisions, p. 131.

The Act 12 Queen Anne, c. 18, made perpetual by 4 Geo. I. c. 12. entitles the party who has a claim for salvage to payment within 30 days after the service performed, “and in default thereof, that the ship or goods shall remain in the custody of the collector until paid, or good security given.”

1758

About BAILII - FAQ - Copyright Policy - Disclaimers - Privacy Policy amended on 25/11/2010