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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Sir William Henry Don, Bart., and the Rev. Alexander Scott, his Tutor. - Appellants - Sir William Folle - Smith v. M. Lippmann. - Respondent - Dr. Lushingto - Gordon [1837] UKHL 2_SM_682 (26 July 1837)
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Cite as: [1837] UKHL 2_SM_682
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SCOTTISH_HoL_JURY_COURT
Page: 682↓
(1837) 2 S&M 682
CASES DECIDED IN THE HOUSE OF LORDS, ON APPEAL FROM THE COURTS OF SCOTLAND. 1837.
1 st Division.
No. 21.
v.
[
Subject_Foreign Bill of Exchange — Sexennial Prescription — Res Judicata. —1.
A bill of exchange was drawn and accepted in a foreign country, and admitted to be payable there, though not specially bearing a place of payment, and the acceptor, who was a native of Scotland, possessing a landed estate there, returned there before the bills fell due—Held in an action brought against his representatives nineteen years thereafter (reversing the judgment of the Court of Session), that the bill was subject to the sexennial prescription, according to the lex fori, and not to the foreign prescription of the locus contractûs. 2. The payee having, after they fell due, instituted judicial proceedings in the foreign country, and obtained decree against the drawer and acceptor, who was then in Scotland, and he did not receive intimation of them, nor did he appear, and was not able to appear, the two countries being in a state of war at the time—Held, that the decree was not a res judicata, and formed no interruption of the sexennial prescription as against the acceptor.
The late Sir Alexander Don of Newton, Bart., father of the appellant, a native domiciled Scotchman, and possessing considerable landed estates in Scotland, was detained a prisoner in France during the greater part
Page: 683↓
Versail, le 13 9bre 1809.
Bon pour 20,000 fr.
Au premier Mars prochain paye par cette première de change, à l'ordre de M. Lippmann, le somme de vingt mille francs, valeur reçu, sans autre avis.
Bon pour vingt mille francs.
A. Monsieur, Chas. Fagan.
Mon. Don,
Hotel Richelieu, Rue Neuve,
St. Augustin, Paris.
Accepté pour le somme de vingt mille francs, payable le premier Mars 1810.
(Signed) Alexander Don.
Versail, le 13 9bre 1809.
The Hotel Richelieu was Sir Alexander's place of residence. Soon after the bills had been accepted, and before the time of payment, he quitted France, and returned to Scotland: when they became due on the 1st March 1810 they were dishonoured, and were protested for nonpayment against Sir Alexander, and the dishonour was intimated to Fagan the drawer. Lippmann then brought an action against Fagan and Sir Alexander in the Tribunal of Commerce in Paris. Sir Alexander was not, and could not be personally cited; and the whole proceedings were in his absence, without
Page: 684↓
Sir Alexander continued to reside in Scotland, and died there in 1826; and nineteen years after the time of acceptance, viz. in the year 1829, Lippmann brought an action in the Court of Session in Scotland upon the acceptance and upon the French decree against the appellant, as representing his father, and he being an infant was defended by his guardian. In bar of this action the Scotch sexennial prescription was pleaded.
The Lord Ordinary on the 10th June 1835, (after ordering and obtaining the opinion of French counsel 1) issued the following judgment and note:
“The Lord Ordinary, having considered the revised cases for the parties, the case prepared for the opinion of French counsel, and their opinion thereon, together with the productions and whole process, repels the plea of the sexennial prescription stated for the defender, finds that the defender is entitled to be reponed against the judgment of the Tribunal of Commerce in France, and appoints parties to be farther heard on the merits of the cause.
Note.—This action is laid on two grounds: first, on the bills of exchange accepted at Paris by the late Sir Alexander Don; and, secondly, on the decree of the Tribunal of Commerce in that city against Fagan the drawer and Sir Alexander the acceptor, jointly and severally, proceeding on those bills. This decree
_________________ Footnote _________________
1 See this opinion in the Appendix to this report.
Page: 685↓
To decide the question of prescription as applicable to the bills, it is necessary to inquire whether the debt sued for is a French or a Scotch debt, and that depends in this case on the point whether Scotland or France was the place where the bills were payable. If they constituted a Scotch debt, it is plain they are subject, not to the French quinquennial, but to the Scotch sexennial prescription; and as Sir Alexander Don had resided more than six years after the time of payment in Scotland, they are not actionable unless resting owing be proved by writ or oath, or the prescription interrupted by action or diligence. Action was raised against Sir Alexander Don, and decree obtained against him in France; but whether those proceedings amount to an interruption of the Scotch sexennial prescription may well be questioned, whatever may be their effect as a separate title. He was not in France when the action was raised; he was not personally cited there, nor had he any property, either heritable or moveable, within the jurisdiction.
Farther, and what is still more, material, he was then an alien enemy in France, and could not appear in safety in a French court either to sue or to defend. Considered, therefore, purely as a question of Scotch law, it would seem that the sexennial prescription of the bills was not interrupted.
On the other hand, if France was the place of payment, and if the bills in consequence constituted a French debt, the case must be viewed in a different light. Our decisions have not been uniform on this
Page: 686↓
It would follow from this that if the proceedings in the French court were held in that country as an interruption of the quinquennial prescription, they must be so held in Scotland also, however anomalous they may appear, either in respect that the debtor was not within the jurisdiction and had no property there, or in any other view; or if it be the law there that a decree against the drawer is also a decree against the acceptor to the effect of interrupting prescription, the same interruption must be admitted in Scotland.
But the difficulty which occurs to the Lord Ordinary, and which is not met in the opinion of the
Page: 687↓
It appears that by the law of France a judgment in absence prescribes in six months, unless execution has followed upon it; but this prescription was interrupted as to Sir Alexander Don, in consequence of execution against the drawer Fagan, who was liable with him in solidum in the bills, and against whom the judgment also proceeded in so far as the constitution of the debt is concerned. In so far as the question of personal execution is concerned, it was competent for Sir Alexander, and it is still competent for his heir, to be reponed, and to obtain a new hearing in the Tribunal of Commerce, but in no other court; but that proceeding, it is said, would now be inept, as the representative of the deceased is not subject to personal execution.
But whatever may be the provisions of the French law as to decrees in absence, the important question arises whether, when a foreign court is called upon to enforce that decree, it ought not in material justice to repone the party to the effect of his being heard on the merits? A decree sine causâ cognitâ can never be considered in any other light, except either as a
Page: 688↓
On the other hand, although the judgment in the Tribunal of Commerce were to be held in France as a penalty on the acceptor for his contumacy for not appearing to answer the citation, it cannot be viewed in that light in this country, because he could not have appeared in safety, being an alien enemy. Admitting that as a private individual he had a persona standi, and might have been heard by his attorney or procurator, which may be inferred from the opinion obtained, yet on the principles of international law, no man is bound to answer in a court where he cannot be personally present without endangering his liberty, and that from no fault of his own.
The French counsel hold, that as Sir Alexander Don was bound jointly and severally with Fagan, a decree against Fagan in foro contentioso is equivalent to a decree in foro contentioso against Sir Alexander Don also. That might be granted if the
_________________ Footnote _________________
1
Douglas v. Forrest,
4 Bing. R. p. 686.
Page: 689↓
It is on these grounds that the Lord Ordinary has arrived at the conclusion that, while the sexennial or Scotch prescription is repelled as inapplicable to the circumstances of the case, the defender ought to be reponed against the French decree, and parties be allowed to go into the merits.”
This interlocutor having been brought under review of the First Division of the Court, their Lordships, on the 20th January 1836, adhered to the interlocutor of the Lord Ordinary, and remitted the cause to his Lordship, to proceed as shall be just, reserving all questions of expenses.” 1
Against these judgments an appeal was brought.
Appellants.—This case resolves into a question of international law.
The action is laid substantially upon the two bills of exchange, although the respondent also libels upon the decree obtained in the Tribunal of Commerce.
The appellants have rested their defence mainly on the Scotch sexennial prescription. This defence has been opposed on two grounds, 1st, that the Scotch prescription is not pleadable againsta foreign contract; and, 2d, that, at all events, it has been effectually interrupted
_________________ Footnote _________________
1 14 Dunlop, B. & M. 241.
Page: 690↓
1. The first of these objections raises the general question,—Whether the sexennial prescription is pleadable by a Scotch party as a defence against a demand in a Scotch Court for payment of a foreign bill of exchange?
In considering this, a distinction must be carefully drawn between questions as to the constitution of obligations, and as to the mode of enforcing them. In regard to the former, the law of the place of the contract must be the rule; for a court of law must always inquire whether there is a debt or not, and this necessarily depends upon the law of the place where the contract said to create the debt has been entered into. And the same rule holds in regard to the transmission or extinction of debts. But action on or execution of a contract, or, in other words, the mode of enforcing payment, and all objections to the action or the enforcement, must be according to the law of the place where the enforcement is attempted.
Accordingly, Voet and Huber
1 announce it as a general rule, admitting of no exception, that where a debt comes to be prosecuted, it must be prosecuted according to the law of the place where it is pursued for. This is founded upon the ground, that proceedings in courts of justice must be governed by those rules which have been established by the power from whence the Judges derive their authority, which alone they are bound to know, and to which every party who commences a suit before them must submit. In reference
_________________ Footnote _________________
1 Voet, lib. i. tit. 4. pars 2. sec. 58.
De Statutis. Huber, De Conflictu Legum Divers.
Page: 691↓
As thus the lex loci contractûs regulates the constitution, transmission, or extinction of obligations, and, on the other hand, the lex fori forms the rule in all questions as to the enforcement of the obligation, and as to the efficacy or extent of it, so the law of Scotland must be followed in the present case. Indeed, the Scottish statutes and rules, which limit the endurance of actions, have been uniformly extended to claims founded on contracts executed in foreign countries; as in the cases of Randal against Innes, Barret against the Earl of Home, and Kerr against the Earl of Home.
3 In the two first of these cases Scotch parties, to whom
_________________ Footnote _________________
1 Dirlet. 8vo. edit. p. 96. _________________ Footnote _________________
2 Book iii. tit. 7. sec. 48. _________________ Footnote _________________
3
Randal v. Innes,
13th July 1768, Fac. Coll. 4. p. 310. No. 70. Mor. 4520;
Barret v. Earl of Home,
4th Feb. 1772, Fac. Coll. 4. 4. No. S. Mor. 4524;
Kerr v. Earl of Home,
20th Feb. 1771, Fac. Coll. 5. 234. No. 80. Mor. 4522;
Delvalle v. York Buildings Co.'s Creditors,
9th March 1786, Fac. Coll. 9. 402. No. 264. Mor. 4525. Fac. Coll. 9. 406. No. 265. Mor. 4978. 12th March 1788, Fac. Coll, 9. A pp. 18. (Rever).
Page: 692↓
In the same way, the long negative prescription has been successfully pleaded in the courts of Scotland as a defence against a claim upon English bonds. This appears from the case of Delvalle against the Creditors of the York Buildings Company, where it was objected to bonds in the English form, that they were cut off by the Scottish prescription of forty years. The Judges were agreed that the lex domicilii debitoris must regulate the decision of the case; and a majority being of opinion that the domicile of the York Buildings Company was in Scotland, the bonds on which the action was laid were held to have fallen by the long prescription. This judgment was reversed in the House of Lords,
_________________ Footnote _________________
1
Campbell v. Stein,
Nov. 23, 1813. Fac. Coll. 17. 456, No. 124, June 5, 1818. Fac. Coll. 19. 771, (Affirmed); 6 Dow, 134.
Page: 693↓
Upon the same principle it has been found that the defender cannot plead the lex loci contractûs against the law of his domicile. In the case of Kinloch against Fullerton a claim was preferred against an heir in heritage for payment of a promissory note contracted by his predecessor in England. It was objected, that the heir was not bound in the promissory note; that the locus contractûs must be the rule; and that, if the obligation was so limited as to be good only against the executors in
_________________ Footnote _________________
1
York Buildings Co. v. Cheswell,
14th Feb. 1792, Fac. Coll. 10. 436. No. 207. Mor. 4528. _________________ Footnote _________________
2
Richardson v. Lady Haddington,
8th March 1822, 1 S. & D. p. 387, (new edit.) 362. (Reverse.) 2 Sh. App. Ca. p. 406.
Page: 694↓
There is nothing peculiar in the contract created by a foreign bill of exchange, or which should make it an exception from these rules. The statute 12 Geo. 3. (1772), which establishes the sexennial prescription, does not except foreign bills from its operation. On the contrary, the prescription is made applicable to bills of exchange generally, comprehending, of course, foreign bills. This is the view taken by Lord Eskgrove in giving his opinion in the case of Delvalle, as to the application of the Scottish long prescription to English bonds. In “prescription,” he says, “it is not the debt which prescribes, but the action. This may be well illustrated by the act 12th Geo. 3. It is there provided, that after a certain term bills shall be of no force or effect to
_________________ Footnote _________________
1
Kinlo v. Fullerton,
10th July 1739, Elchi's Sue. No. G. Clk. II. 199. No. 125. Mor. 4456. _________________ Footnote _________________
2
Gibson v. Stewart,
29th March 1831, 9 Sh. & D. p. 525. (new ed.)
Page: 695↓
Mr. Chitty, in his work upon the law of bills of exchange, views them, in regard to this matter, as simple contracts, and his authorities and analogies are generally drawn from the law of contracts.
In particular, he refers to the case of De la Vega against Viana 1, where it was found,—1st, That in a suit between parties resident in England, on a contract made between them in a foreign country, the contract is to be interpreted according to the foreign law, but the remedy must be taken according to the law of England; and, 2d, That one foreigner may arrest another in England for a debt contracted in Portugal, while both resided there, though the Portuguese law does not allow arrest for debt. So in the leading case of the British Linen Company v. Drummond 2, where an action was brought in the King's Bench on a written engagement entered into in Scotland, and by the law of England the statute of limitations had attached, but the deed was in full force according to the law of Scotland, the Court of King's Bench thought the case must be governed by the law of the country in which the action was brought.
2. The second plea by the respondent, in answer to the defence
_________________ Footnote _________________
1
De la Vega v. Viana,
1 Barn. & Adol. p. 284. _________________ Footnote _________________
2 British Linen Co. y. Drummond, 10 Barn. & Cress, p. 903.
Page: 696↓
This brings the case to the question of jurisdiction, on which the parties are truly at issue; and even supposing the argument of the respondent to be well founded, that the liability under the bills depends on the law of France, still that law fell to be applied by a court having jurisdiction over Sir Alexander Don.
There are various ways in which a party may become amenable to the civil jurisdiction of a court. The general rule is, that such jurisdiction can be exercised only over persons intra territorium,—whether they be foreigners or natives, the judge's jurisdiction is clear ratione domicilii. Civil jurisdiction, to the effect of attaching property, is also founded ratione rei sitæ.
1 Neither of these
_________________ Footnote _________________
1 Ersk. b. i. tit. 2. sec. 16.
Page: 697↓
The French lawyers in their opinion assume, contrary to the fact, that the bills accepted by Sir Alexander Don “were made payable in France,” and upon this ground they give it as their opinion, that the citation to appear before the Tribunal of Commerce “was perfectly valid.” But as this opinion proceeds upon an error in point of fact, no weight should be attached to it in deciding this case.
There is no doubt that, under certain qualifications, civil jurisdiction may be created ratione contractûs. A foreigner who contracts an obligation, either by an account, a bond, or a bill, is bound to perform while he remains within the country; but if he has removed
Page: 698↓
The French lawyers say, “It is a principle of the law of France, that a stranger, even a non-resident in France, may be cited before the French tribunals in order to fulfil the obligations contracted by him in France towards a Frenchman. Every French tribunal is therefore competent, according to the nature of the obligations, to exercise in such cases its jurisdiction over a foreigner. A foreigner, on entering into a contract in any other country than his own, has done an act, according to the law of nations, by obliging himself to perform in that very country an engagement which he has contracted; he has voluntarily renounced, in respect to this obligation, the jurisdiction and the law of his own country, and has no longer the right to invoke the maxim. Actor sequitur forum rei. It is not necessary, on that account, that the person should still reside in France at the moment the performance of the contract is claimed. It is quite enough for him to have resided there when the contract was entered into. It is that moment, and by that very act, that the competence of the French tribunal has been established.”
1 Independent of the mistake, in point of fact, running through this passage, that Sir Alexander Don undertook to pay the bills in France, it involves some legal propositions rather of a
_________________ Footnote _________________
1 Appendix.
Page: 699↓
It may be true, that the principles upon which the jurisdiction of courts of law are founded are not common to all civilized nations; but it is a great mistake to suppose that there are no general rules recognised, as of universal application in international questions of jurisdiction; and it is equally so, to imagine that the special rules in regard to jurisdiction established in a State for the regulation of its own courts must be implicitly given effect to when the judgment becomes the subject of litigation in a foreign court.
“It is not an uncommon course for a nation,” says Mr. Justice Story
1, “by its municipal code, to provide for the institution of actions against non-resident citizens and foreigners by citations, viis et modis (as it is called), or by attachment of their property, nominal or real, within the limits of their territorital sovereignty, and to proceed to judgment against the party defendant, whether he ever appears to
_________________ Footnote _________________
1 Conflict of Laws, Edin. edit. p. 457.
Page: 700↓
Nay, so far has this doctrine been carried in England, that a holder of a bill drawn in France on a French stamp was allowed to recover in an English court, though, in consequence of its not being in the form required by the French code, he had failed in an action which, he brought on it in France. 1 In other words, a French decree of absolvitor was disregarded, in a question as to enforcing the obligation, because the decree proceeded on a ground purely local, and upon principles at variance with the law of England, and justice.
For the same reason, the French decree against Sir Alexander Don can have no effect in the Scotch courts. The jurisdiction ratione contractûs, which the French lawyers held to have given validity to it, is a mere fiction, peculiar to the law of France, unknown to the law of any other civilized country, and opposed to those principles of natural justice on which international law rests. To found jurisdiction ratione contractûs,
_________________ Footnote _________________
1
Wynne v. Jackson,
2 Russ. 351.
Page: 701↓
“Ratione contractûs forum competens sortitur reus eo in loco, in quo contractûs vel quasi contractûs celebratus seu perfectus est; si modo reus illic inveniatur, aut bona habeat, quae possunt eo absenti ibi judicis auctoritate possidere.”
He adds, “Cum quo et jus canonicum consentit et mores “hodierni.” So deeply, indeed, did the continental lawyers consider these principles to be founded in justice, that they held it incompetent for a party who was extra territorium in person and property to prorogate the jurisdiction of a judge ratione contractûs. After announcing the rule in the passage just quoted, Voet represents it as so absolute, “ut ne ex speciali quidem jurisdictions prorogatone contractui addita contrahens ibi conveniri possit, nisi ipsi aut bonis ipsius in eo loco repertis injecta manu (arrestum dicunt) jurisdictio stabilita sit.” 1 In support of this doctrine he refers to Gayl, Sande, Faber, and other continental authorities.
The law of Scotland, as to the founding of civil jurisdiction ratione contractûs, is thus stated by Mr. Erskine 2:
“It is necessary, in order to establish jurisdiction in this manner, that the defender be actually within the judge's territory, and be cited by a warrant issuing from his court, or at least that he have effects lying there, for jurisdiction cannot have the least operation when both the person and the estate of the defender are withdrawn from the judge's power.”
That such is also the rule of the law of
_________________ Footnote _________________
1 Lib. 5. tit. 1. sec. 73. _________________ Footnote _________________
2 B. i. tit. 2. sec. 20.
Page: 702↓
These principles are illustrated by the case of
Buchanan v. Rucker.
2 By the law and practice of the Court of Common Pleas in Tobago, a party absent from the island, both in person and property, may be effectually
_________________ Footnote _________________
1 4 Bingham, 686. _________________ Footnote _________________
2
Buchanan v. Rucker,
1 Camp. Rep., p. 93, and 9 East, R. 192. S. C.
Page: 703↓
Page: 704↓
A class of cases has been strongly relied on by the respondent, in which the courts of Scotland have given full effect to foreign decrees; but these cases have no application to the present. In the first place, in all of them the object of the action was directly to enforce a foreign judgment on the merits as the sole ground of debt; and, second, the foreign decrees had invariably passed against parties over whom the jurisdiction of the courts issuing them was undoubted. Thus, in the case of Goddart, the ground of action in the Scotch court was a decree of the Court of King's Bench regularly
Page: 705↓
_________________ Footnote _________________
1 Goddart v. Swinton, 1709, July 13. Fount. 2. 514. Mor. 6445; July 24, 1711, Fount. 2. 663.
_________________ Footnote _________________
2 Edwards v. Prescott, Dec. 29, 1720; 1713, Dec. 3, Forbes' MS. Fol. Dic. 1. p. 323, Mor. 4533; Kames' R. Dec. 1. 43, No. 21, Mor. 4535.
_________________ Footnote _________________
3 Sinclair v. Fraser, March 4, 1771, Fac. Coll. 4. 390, Mor. 4543. (Reversed.)
Page: 706↓
The same remark applies to the English case of Douglas and the assignees of Stein and Smith against Forrest, on which the respondent seems mainly to rely.
_________________ Footnote _________________
1
Hamilton v. the Dutch E. I. Com.,
July 24, 1731, Fol. Die. 1. 324, Mor. 4548. _________________ Footnote _________________
2
Johnston v. Crawfurd,
Feb. 19, 1751, Elchies' Tutor, &c., No. 23. _________________ Footnote _________________
3
Leith v. Hay,
Jan. 17. 1811, Fac. Coll. 16. 125, No. 35. _________________ Footnote _________________
4 Brown's
Trustees v. Brown,
4 S. & D. June 23, 1825, p. 108, (new edit.) p. 109; 4 W. & S. Ap, C. p. 28. (Affirmed.)
Page: 707↓
Page: 708↓
Respondent.—It is unnecessary to inquire into the law of any other country on this subject than that of France, where the bill was made; because if, according to the law of that country, the locus solutionis was pointed out by the form in which the bill was drawn, no other meaning can be given to the obligation than that it was the intention of the parties, and the contract between them, that the bill should be paid in the place so specified. Pardessus 1 explains the law of France upon this subject to be, that where the place of payment is not specially designed in the body of the bill, that place is held to be specially pointed out by the address of the party drawn upon, stating his place of residence, which is then understood as his domicile, where payment is to be made.
_________________ Footnote _________________
1 Pardessus, t. ii. 384.
Page: 709↓
Sir Alexander Don must therefore be held to have contracted to make payment of the bill at the Hotel Richelieu in Paris when the bill became payable. It cannot be argued, that in these circumstances the locus solutionis was to be changeable according to the choice and will of the debtor,—that the place of payment was to be in France if he resided there when the bill became due, but was to be in England, or in Holland, or in any other country to which he might think fit to proceed. The bills were drawn by a party domiciled in France in favour of a Frenchman, who advanced the contents. They are drawn in the language, according to the form, and on the paper suitable to French documents. The party drawn on was an Englishman, at a distance from his own funds, and unable to communicate with his country. He had been in Fiance for many years, whether as a prisoner or not is of no consequence, and no party could speculate upon a speedy termination of his residence in France. It is impossible therefore to imagine that any Frenchman, advancing money in these circumstances, could have intended to take upon himself the burden of following the acceptor to another country before he could demand payment, or protest the bill for nonpayment. It was necessary that the bill should be protested for nonpayment in order to preserve the recourse upon the drawer, but if the place of payment was ambulatory along with the person of the drawee, how could that protest be taken? Above all, it is absurd to say, that the parties contemplated the Scotch domicile of Sir Alexander Don as the place of payment, when the circumstances under which the bill was granted are considered.
The locus solutionis therefore of these bills was the
Page: 710↓
In the decisions which have been pronounced as to bills of exchange, the law of the place of payment has been held to regulate the contract, both as to constitution of the debt, proof of resting owing, and extinction, whatever might be the place of the domicile of the debtor. Accordingly, it will be found that several questions have arisen upon this point, with regard to English and other foreign bills, and in all of them, the law of the place of payment, or, in other words, of the place where the contract was to be implemented, was held to govern without reference to the domicile of the debtor.
A writer 2 states the law as extracted from the decisions to this effect:
“The question whether the Scotch prescription, or the English statute of limitations, applies to a bill or note, seems to depend upon the fact where it is made payable, as it will be presumed that the parties meant the contract to be regulated by the law of the country in which they wished it to be performed. Thus the English statute being pleaded against an action brought on a bill which had been drawn in Virginia, but was made payable in Scodand, the Court repelled
_________________ Footnote _________________
1 Corpus Juris, lib. xliv. tit. vii. sec. 21.
_________________ Footnote _________________
2 Thomson on Bills, p. 708.
Page: 711↓
The result of these and of subsequent decisions
4 is this:—That when a contract is entered into in a foreign country to be implemented there, the law of that country is held to be embodied into the contract, and to form part of the agreement between the parties. The courts of Scotland, upon proof of the law, have invariably enforced it, because it was part of the implied contract,
_________________ Footnote _________________
1
Rogers v. Cathcart and Ker,
25th July 1732, Fol. Dic. 1. 280. Mor. 4507. _________________ Footnote _________________
2 Lord
Lovat v. Lord Forbes,
2d Dec. 1742, Clk. Home, 346. No. 210. Mor. 4512. _________________ Footnote _________________
3
Grove v. Gordon,
Nov. 1740, Kames' It. Dec. 2. 29. Mor. 4511. _________________ Footnote _________________
4
Asmour v. Campbell,
21st Jan. 1792, Mor. 4476;
Wilson v. Renton,
21st Jan. 1792, Mor. 4582;
Richman v. M'Lachlan,
24th May 1827, 5 S. & D. p. 700 (new edit.) 653.
Glyn v. Johnston & Co.,
8th June 1830, 8 S. & D. p. 889.
Page: 712↓
The appellants have founded upon some English decisions, in which they state the courts of England to have refused to enforce the lex loci contractûs, and to have applied the peculiar rules of their own law. It is questionable whether these cases do not fall under the general doctrine already stated, viz. that the locus solutionis is to regulate. It will be found that there was no specified place of payment, and that consequently the law of the domicile would regulate.
The most important English case alluded to is that of Wynne v. Jackson, and it is said “that a French decree of absolvitor was disregarded because it proceeded upon principles utterly at variance with the law of England, and with English notions of justice.” On referring to the report, it will be found that the question stated seems not to have been discussed. It is mentioned in the title of the case, but there is no argument upon it in the report, and it is not mentioned by the Lord Chancellor in his opinion.
If the respondent is well founded in his proposition that the contract is to be interpreted according to the law of France, and if it is part of that law that the parties entering into it shall be amenable to the jurisdiction of the French courts, to the effect that a judgment taken in them against the debtor shall give a new title to the debt, it would seem to require only proof of the law to render it effectual wherever it may be necessary to enforce it. If the parties to a contract might, after that contract is entered into, prorogate the jurisdiction of a court, so as to give it power to pronounce a decree to which it might otherwise have been
Page: 713↓
Page: 714↓
There is nothing in this view contrary to the jus gentium, or repugnant to the principles of universal justice.
The law of England holds the lex loci contractûs to be so effectual, that it will allow no foreign court to interfere with the law which originally regulated the contract when entered into, and refuses to recognize any foreign decree, however pronounced, which proceeds upon any different rule. It is held therefore, by the principles of such a decision, that the parties contracting are bound by the law regulating the contract into which they have entered in England, and that no circumstances can modify or change their respective relations under that contract; and it is a good authority so far as it tends to show that the regulations of the country in which the parties enter into a contract, both as to its effect and duration, depend upon the law of that country; and there is nothing in the law of Scotland contrary to that general principle, for it recognizes the lex loci contractûs as a principle of international law.
Supposing, therefore, that the law of France is to be taken as the law regulating the contract, there is nothing in the rule as to the change of the title of the debt, or in the jurisdiction given to the French Court, which is either contra bonos mores, or contrary to the jus gentium.
But even if the question is taken as one of jurisdiction, apart altogether from the question of contract, there is nothing in the law of France to prevent its principles from being enforced.
The law of Scotland holds, that by the simple arrestment
Page: 715↓
This appears to be more contrary to general principles of justice than the peculiar law of France now in question. That law gives to the French court power to pronounce a judgment against a foreigner, as to the subject of a contract into which he has entered in France with a Frenchman, France being the place where the contract is to be performed. In this there is nothing repugnant to original principles of justice. It is the law under which the transaction was entered into, and the obligee cannot plead ignorance of it. Besides, the jurisdiction given to the courts of France, as the locus contractûs, arises from a principle known to the civil law, and recognized by many of the jurists. There are many texts in the civil law which show that the ordinary doctrine, Actor sequitur forum rei, did not always take place, and that jurisdiction was given to the forum contractûs, although the defender might be absent, and not otherwise subject to the jurisdiction. “Juris ordinem converti postulas, ut non actor rei forum, sed reus actoris sequatur; nam ubi domicilium reus habet, vel tempore contractûs habuit, licet hoc postea transtulerit, ibi tantum eum conveniri oportet.” 1
It is part of the lex loci contractûs, that a judgment taken against one of the parties to the bill should have the same effect against the whole parties, whether they appeared in the action or not. The law of France is,
_________________ Footnote _________________
1 Codex, lib. 3. t. 13; Brunnemannus, lib. 5. t. 1. sec. 14. p. 278; Mat. Stephan Pomeran, lib. 1. cap. 29. sec. 1; Voet, lib. 1. t. 1. sec. 66.
Page: 716↓
The decree is good, either as a decree entitling the holder to execution against all the parties named in it, or entitling him to pursue as for a debt in which the original title has been strengthened by an accessory or supervening title. The Court below place their judgment upon these grounds,—that the prescription, which would otherwise have run upon the bill, has been interrupted by the decree to this effect, that the holder cannot be met by the plea that the bill is extinguished by prescription, although they consider that the debtor or his representative is entitled to defend himself upon the merits, in the same manner as he might have done if he had been pursued upon the bill within the years of prescription. They therefore do not hold the judgment of the French courts as a judgment at once entitling a party to execution, but as a judgment good to the effect of barring prescription, and of constituting a title upon which the party might proceed as a ground of action within the more extended period for which it is good as a title. The Court has thus given to the appellants all the equity to which they are entitled. The law of France is applied according to those principles of international law, which are universally admitted, and the judgment
Page: 717↓
In the case of Gordon v. Bogle 1 it was held that a decree obtained against one of the acceptors of a bill interrupted the prescription as to the whole. The appellants, while they admit this rule, in so far as acceptors are concerned, argue that it does not apply to the case of a drawer, who is only subsidiarie liable. No doubt, in so far as the acceptor is concerned, the drawer may be only subsidiarie liable, but in a question with the holder both parties are conjunctly and severally liable. It is true that the demand must in the first place be made upon the acceptor; but the moment that the protest is taken for nonpayment the obligation of the drawer is purified, and no further discussion of the acceptor need take place at the instance of the holder. So far as the drawer is concerned he is in fact the principal debtor, because it is to him that the money is generally advanced, and at all events, immediately upon nonpayment, the obligation of the one is as full and perfect as the obligation of the other, and the payee is entitled to recover from both conjunctly and legally.
But the decision in the case of
Gordon v. Bogle proceeded upon no such specialty. It was held to be enough, under the statute (1772), that an action be commenced upon the bill against any of the parties
_________________ Footnote _________________
1
Gordon v. Bogle, 23d June 1784; Fac. Coll. 9. 249. No. 160. Mor. 7532.
Page: 718↓
But even if this were not the law of Scotland, there is nothing contrary to justice in a law which declares that a decree taken against a drawer of a bill shall prevent its prescription against the acceptor. If the acceptor is primarily liable, and has failed to make payment when the bill became due, he has no right to object to the obligation against him remaining entire, so long as it remains entire against the drawer. There might be some injustice in the converse, because the drawer might not be aware of the obligation of the acceptor being undischarged, but the acceptor knows that he has not performed his obligation, and therefore has no equity to plead.
The case of
Buchanan v. Rucker is quite dissimilar from the present one. From the summons in the case of Rucker, it is apparent that the defender had entered into no contract payable in the island of Tobago, and had never been within the island, so that he never could upon any principle be liable to the jurisdiction. The summons states, “George, &c. We command you to
_________________ Footnote _________________
1 Thomson on Bills, p. 678.
Page: 719↓
“Served by William Smith, nailing up a copy of the declaration at the court-house door, the 25th of June 1806, whereupon judgment was given by default.”
From the observations of Lord Ellenborough, it is plain that a jurisdiction had been assumed over a party, who had never been within the jurisdiction, and over whom therefore the Court never had any power. His Lordship puts the case of a judgment obtained in Tobago against him, and then an attempt being made to enforce it. “If a judgment could thus be recovered against any one behind his back, a man would have nothing more to do but go out to Tobago, there sue us to any amount, and then return to this country to put his judgments in force against us.” If the party had ever been within the country, it appeared from the subsequent observations of Lord Ellenborough, in Cavan v. Stewart, 1 that the judgment would have been different; but it certainly would have been contrary to the first principles of justice if a party could obtain a foreign judgment without citing the defender, and upon that proceed against him as upon a judgment which had been properly obtained.
The rule with regard to foreign judgments is well
_________________ Footnote _________________
1
Cavan v. Stewart,
1 Stark, p. 525.
Page: 720↓
“It will be necessary, therefore, to prove that the party was duly summoned, or, if he is described in the proceedings as an absentee, that he had absented himself from the country. With respect to the proof of his absence, that fact might perhaps be inferred from a return, of non est inventus, to the process issued against him, if it be proved, that he had been in the country.”
So far, therefore, from the law of England being contrary to the proposition maintained by the respondents, it is decidedly in favour of it. It would support a judgment in absence upon a return of non est inventus, and in the present instance there is a regular citation and a subsequent return that the defender had left the country.
None of the cases founded upon by the appellants are inconsistent with this doctrine. They are solely referable to the question, as to whether the prescription of the law of the domicile of the debtor, or of the place where the debt was originally contracted, was to regulate. It does not appear that in any of these cases there was any distinct locus solutionis, and therefore it might fairly be argued, that the creditor in demanding payment looked to the law of the domicile, and not to the lex loci contractûs. But without attending to this specialty, it is evident that these decisions being referable only to the question of prescription cannot affect this case. This is not a question of prescription. If the right of the respondents to recover payment of the debt due to them had depended upon the law of prescription, they admit that the bill was prescribed both according
_________________ Footnote _________________
1 Vol. i. p. 351.. 5 ed.
Page: 721↓
On the 13th of November 1809 he accepted two bills for 20,000 francs each, drawn by one Fagan, and payable to the respondent at four months date. The place of acceptance was the hotel in Paris where he was living; no place of payment was specified; and some discussion seems to have taken place below as to where the payment in such a case is to be presumed,
Page: 722↓
The payee of the bills brought an action against Fagan the drawer and Sir Alexander Don in the French Court, but after Sir Alexander Don had left the country. He was therefore never personally cited; and though a judgment was obtained against both the parties sued, the whole proceeding was in his absence, without his knowledge, and while those hostilities continued which prevented him from appearing or taking any part in the proceedings had he known of them. After his decease, and at the end of nineteen, years from the acceptance in 1809, the respondent brought his action against the appellant as representing his father, and he, being an infant, was defended by his guardian; the action was upon the acceptance, and upon the French judgment. The Scotch sexennial prescription was pleaded in bar of it. The Lord Ordinary, after inquiring into the French law upon the whole matter, repelled the defence of prescription upon the ground that the debt was a foreign debt, and that the
Page: 723↓
To this interlocutor the Lords of the First Division adhered, and the present appeal is brought from these judgments.
Upon these short and admitted facts, and upon the further assumption to which I have adverted, that the bill being accepted in France must be held payable there, the question arises—and it is not only the principal point, but one that will be found to dispose of nearly the whole cause—Which of the two laws,—the law of France, where the contract was made, and the performance was primarily to be had,—or the law of Scotland, where the action is brought,—shall be the rule to govern the application of the remedy sought by the party bringing his suit?
This question mainly arises upon the defence of prescription. Shall the French or the Scotch law of prescription be applied to the case? The law upon the point is now well settled in this country; the distinction is taken between the contract and the remedy. Whatever relates to the nature of the obligation—ad valorem contractûs—is to be governed by the law of the country where it was made,—the lex loci; whatever relates to the remedy, by suits to compel performance, or by action for a breach—ad decisionem litis,—is to be governed by the lex fori—the law of the country to whose courts the application is made for performance or for damages. This principle was the ground of the decision in the British Linen Company v. Drummond, and it has been since followed in other cases, as De la Vega v. Viana,
Page: 724↓
Consider now, whether upon principle, and without reference to the cases, both parts of the proposition are not well founded; both that the lex fori is the rule where the question arises upon the remedy, and that limitation of actions belongs to the head of remedy—ad decisionem litis, as some jurists term it, orad tempus et modum actionis, as others express themselves.
When parties contract, they may most naturally be supposed to regard their mutual rights and obligations as fixed by the law under which they are living. If they look to that of any other country, they may well be expected to specify it and provide accordingly. The contract being silent, nothing can be more fit than the presumption that they had only the lex loci in contemplation; nor can any inconvenience arise in the vast majority of cases from holding this to be the rule. For, suppose the contract comes into discussion before the tribunals of a foreign country, the material fact can
_________________ Footnote _________________
1
Trimbey v. Vignier,
1 Bing, N. C. p. 151. _________________ Footnote _________________
2
Uber v. Steiner,
2 Bing. N. C. p. 202. _________________ Footnote _________________
3
Williams v. Jones,
13 East, p. 439.
Page: 725↓
Accordingly, there seems little disposition in cases of this description to question the principle generally; some such distinction, it is for the most part admitted, must
Page: 726↓
Thus no one can contend that because a contract has been made abroad the forms of action known in the foreign courts shall be pursued, or the foreign rules of process or other preliminary proceedings imported, or those of pleading and curial practice followed. But it is said, first, that prescription and limitation fall not within the course of proceeding in courts; and, secondly, that they belong to the nature of the contract, and not to the remedy.
First, no one can maintain so absurd a proposition as that, before jury trial was extended to civil cases in Scotland, an English creditor ought upon general principles to have had the right of calling on the Court of Session to empannel a jury for the purpose of trying the action brought by him on a contract made in England, where a jury only could have decided on his rights; or, conversely, that a Scotchman ought to have been entitled to refuse the verdict of a jury, and insist upon the judges trying an issue of fact, because the contract had been made in Scotland, where the judges only could have adjudicated. Nor has any one, I think, gone so far as to contend in terms,—in substance it has not only been contended but decided, I am afraid, in some cases, but I have never heard any one go so far as to contend in terms,—whatever may have been assumed in some discussions,—that the foreign rules of evidence should be the guide in such cases; and yet it will not be found so easy upon any sound principle in this argument to distinguish the rules of evidence from those of prescription. The practice in examining witnesses or in producing written evidence is at once given
Page: 727↓
Page: 728↓
Secondly, it is contended, however, that limitation or prescription is of the nature of the contract; and this is attempted in two ways. First, it is said that the contract is that the parties should be bound for a given time, the period of prescription, namely, which the lex loci fixes. But this is a very strained and unnatural construction of the obligation; the parties do not bind themselves with a view to that period at all. They bind themselves to do certain things either immediately or at a given day, or when certain other things shall happen, or be done. Thus in the case at bar the obligation was to pay on a certain day; then that time alone was in contemplation of the parties, and if no future day of payment had been named, the obligation would have been immediate, to pay on demand. They looked to performance only, and to the time of performance; the argument supposes them to have looked to a breach. The contract was to pay at a certain time; and if a breach was at all in contemplation, and a secondary undertaking was engrafted upon that contingency, it could only be an undertaking to answer for the consequences generally of the breach, the damage arising from the breach, and to be liable until it was made good. But nothing can be more violent than the supposition that the breach of the contract is in the contemplation
Page: 729↓
Next, it is said that the time of limitation belongs to the contract, because by the Scotch law it is not the remedy which is taken away, but the debt which is extinguished. Now to this view of the case what has just been stated applies sufficiently to meet it; but there seems no good ground for the distinction taken between prescription and limitation of actions in the case under consideration, at least so far as to affect the present question. The later sections of the 12 Geo. 3. c. 72. are intituled “for limiting actions upon bills and notes,” and though the preamble mentions the “limiting the endurance” of instruments, the enactment is that they “shall not be effectual to produce any action or diligence” unless such diligence be raised or action commenced within six years. The enactment therefore strictly regards the remedy, or the force of the instrument as a ground of giving the remedy; besides, the proviso, sec. 39, reserves the creditor's right to prove by the writ or oath of the debtor that “the debt is resting and owing.” This indicates a continuing subsistence
Page: 730↓
The principle under consideration is adopted, not only by the English law, but by that of other countries. Dr. Story lays it down generally in his book; Huber and Voet fully sanction it. “Prescriptio et executio (says Huber, De Conflictu Legum) non pertinent ad valorem contractûs, sed ad tempus et modum actionis instituendæ, quæ per se quasi contractum separatumque negotium constituunt; atque receptum est
Page: 731↓
It must be admitted that nothing could be more unfortunate than to find the law of Scotland differing in this important particular from the general law of nations, and especially of the mercantile world, on a question so nearly affecting mercantile transactions; the more especially when we see that the generally prevailing law rests upon the soundest foundations of principle. Nor will one or two decisions justify us in concluding that the Scottish system presents this anomaly; although, if we found the course of authority to be clear, or nearly so, in its favour, we might be compelled to hold that the exception does exist. Some cases are certainly to be found in the books which, it may confidently be affirmed, are wholly irreconcileable to principle, and these are directly opposed to other decisions. Thus in two instances,
Galbraith v. Cuningham
1, 1626, and
Balbirnie v. Arkill
2, 1633, it was held that an action being brought in Scotland upon bonds executed in a foreign country, the law of that country, and not of Scotland, was to regulate the mode of proving payment; the one law allowing and the other rejecting proof by witnesses. This was decided in the former case upon the ground that the contract was made abroad, and that the fact of payment happened abroad; and in the latter, upon the
_________________ Footnote _________________
1
Galbraith v. Cuningham,
15 Nov. 1626, Durie 332, Mor. 4430. _________________ Footnote _________________
2
Balbirnie v. Arkill,
27th Feb. 1633, Mor. 4446.
Page: 732↓
I mention these cases now, before coming to the consideration of the decisions upon limitation or prescription, because they go a great deal further than any others, and indeed go to a length quite at variance
_________________ Footnote _________________
1
Grey v. Grant,
Dec. 1st 1789, Fac. Coll. 10..170., No. 94. Mor. 4474. _________________ Footnote _________________
2 8 Shaw & Dunlop, p. 889. new ed. _________________ Footnote _________________
3 9 Shaw & Dunlop, p. 525. new ed.
Page: 733↓
A similar remark is made by Mr. Erskine upon that class of cases to which it now becomes necessary that the attention of your Lordships should be directed,—those touching the application of prescription or limitation.
After stating, that where an English debt is sued for in the Scotch Courts the English limitation cannot be allowed, though it may be the ground of presuming payment, unless the contrary shall be proved by evidence or by stronger presumption, he adds, that it is hard to quote any decisions of our Supreme Court in support of what has been observed to which contrary decisions may not be opposed.
Before examining those cases more narrowly, it may
Page: 734↓
The latter seems indeed to have rather arisen out of a preference (though a preference not kept steadily in view) for the sounder principle of the lex fori; for the rule actor sequitur forum rei has probably suggested it.
Neither shall we be carried more safely through the conflict by resorting to the domicile of the debtor as the criterion, for that, too, plainly comes from a consideration of the forum; and so Gibson v. Stewart clearly held, for if the forum had been out of the question, the debtor removing to Scotland would have been immaterial, as it happened after the contract was made. Nor will that avail much more which has been attempted in some instances, as Glynn v. Johnstone, where much ingenuity was exercised, especially by Lord Gillies, in endeavouring to reconcile the cases—namely, accounting for the rejection of the lex loci contractûs in favour of the lex fori, by suggesting that the locus fori was also the locus solutionis, merely because no place of payment had been appointed, that being clearly only called the locus solutionis because it happened to be the locus fori. In truth the consideration of the forum prevails much more through the cases than any other; and domicile, solutio, and all are chiefly assumed with a view to forum.
That there is some conflict of cases, however, must be confessed; there are one or two not to be reconciled to the sound principles which should govern the question. But the authority of these, when they are considered, appears insufficient to overrule that of a much more numerous class, in which the better view was adopted. It might safely be asserted that the cases of Talleyrand
Page: 735↓
The cases chiefly relied on to show that the foreign law is the rule, are Grove v. Gordon 3, Philips v. Stamfield 4, Delvalle v. York Buildings Company, and Rickman v. Maclachlan. 5 In Grove v. Gordon, which was an action by an indorsee of a promissory note made in England, the sole reliance was on the locus contractus, without a word being said of the locus solutionis; and the only reason given for applying the English statute of limitations was drawn from the rule, that contracts are held valid or void everywhere, both as to their essentials and the formalities attending their execution, according as they are void or valid by the lex loci; a reason which clearly does not support the decision. Accordingly, Lord Kaimes expresses a strong opinion against the case, holding that the lapse of time and the foreign law should not have been held a bar, but only a circumstance tending to show the probability of satisfaction.
Upon
Philips v. Stamfield very little reliance can be placed, when the grounds of the decision are considered. It was on a defence of the triennial prescription set up against a claim by English merchants for goods furnished to the defender's ancestor. Nothing is said of the debtor's domicile, nor of the locus solutionis; but the ground of the decision in favour of the lex loci contractûs was, that the question arose in re mercatoria,
_________________ Footnote _________________
1
Talleyrand v. Boulanger,
3 Ves. 449. _________________ Footnote _________________
2
Melan v. Duke of Fitzjames,
1 B. & P. p. 138. _________________ Footnote _________________
3
Grove v. Gordon,
Nov, 1740. Morr. 4510. _________________ Footnote _________________
4
Phillips v. Stamfield,
Jan. 11th, 1695, Fount. 1, p. 733, Mor. 15806. _________________ Footnote _________________
5
Rickman v. Maclachlan,
5 Shaw & Dunlop, 653, new ed.
Page: 736↓
Delvalle v. York Buildings Company arose upon the negative prescription of forty years, which, it was strongly argued, extinguished the debt, and wholly precluded its revival by any means. The defenders, too, the debtors, were entirely English, an English company established by act of Parliament, and only coming within the jurisdiction by having property in Scotland; nor must it be laid out of view that the Court of Session having decided in favour of the lex loci notwithstanding these reasons, the reversal took place in this House without any appearance being made for the respondents; the judg me
Page: 737↓
Rickman v. Maclachlan is certainly a strong case, but it seems wholly impossible to support it upon any principle. It was an action by the indorsee against the indorser of a bill drawn in Scotland upon a person in England, accepted by him there, but payable to a person in Scotland, who indorsed it in blank. The Court held it to be an English debt as being payable in England, and therefore they considered it to be clear that the English statute of limitations applied to it. But the position that the debt was English is evidently quite groundless; it is a mere mistake. One debt, no doubt, may be called English, namely the debt of the acceptor; but the action was against the indorser, not the acceptor, and upon the
Page: 738↓
There are several other cases, as Fulk v. Aikenhead 1 and Rae v. Wright 2, which proceed only on the lex loci contractûs, and altogether disregard both the locus solutionis and the debtor's domicile. These are wholly irreconcileable both with the other cases now admitted to be law by your Lordships House, and with the principles on which it has been attempted to reconcile those other cases with the leading decisions now adverted to, and with the later ones of Glynn v. Johnstone and Gibson v. Stewart.
Upon the cases which recognize this application of the lex fori it will be the less necessary to dwell at length that they have to a certain extent been sanctioned
_________________ Footnote _________________
1
Fulk v. Aikenhead,
Nov. 1731, Fol. Dic. 1, 322; Mor. 4507. _________________ Footnote _________________
2
Rae V. Wright,
July 1717, Kaimes, Rem. Dec. 1, 16, No. 8.; Mor. 4506.
Page: 739↓
In Thompson v. Earl of Linlithgow 1, July 1708, the Scotch triennial prescription was held a defence to an action by creditors who had furnished goods to the defender's ancestor in London. Nothing was here said of the original debtor being Scotch, but only that the party sued was Scotch, and the action brought in Scotland.
Renton v. Baillie
2, July 1755, is the case to which Mr. Erskine refers as having settled the law after conflicting decisions. It was an action upon a promissory note made in England and payable in England; the maker was a Scotchman as well as the payee. The latter was domiciled in England; the former was there occa sionally, and returned to Scotland soon after making the note. But the locus solutionis was London, and yet the English statute of limitations was not allowed to be set up
_________________ Footnote _________________
1
Thompson v. Earl of Linlithgow,
16th July 1708, Forbes, 268; Mor. 4504. _________________ Footnote _________________
2
Renton v. Baillie,
July 7, 1755, Fac. Coll. 1, 232, No. 156; Mor. 4516.
Page: 740↓
Randal v. Innis, July 1768, Ker v. Home 4, February 1771, and Barret v. Home, February 1772, are all cases of the same kind with Thompson v. Earl of Linlithgow; but they are remarkable as having been expressly decided upon the general question,—what in the report of Ker v. Home is called the “abstract point.” Hubert, Voet, and Lord Kaimes are cited; the law is said to have fluctuated in the earlier cases, but to have been gradually settled, and the lex fori is maintained to be the guide. An observation is made by the Bench, that when a creditor comes to sue in any country he must be able to state that his debt is subsisting according to the law of that country; and in two of these three cases the debtor, though a Scotchman, and having property in Scotland, had never returned to Scotland after the goods were furnished; the actions were brought against his representative.
It is only necessary to mention further the case of
Campbell v. Stein,
6 Dow. 134, which was an action by a solicitor residing in London for his bill of costs, incurred in an appeal before your Lordships to which a Scotchman was a party. The Court below allowed the defence of the Scotch triennial prescription, and their decision was affirmed in this House. Lord Eldon, in moving the judgment of affirmance, which he did after much consideration and with great reluctance on account of the hardship
_________________ Footnote _________________
1
Macneil v. Macneil,
March 2, 1761, Fac. Coll. 3, 52, No. 26; Mor. 4517. _________________ Footnote _________________
2
Ker v. Home,
Jan. 16, 1611, Kerre, Fol. Dict. 2, 218; Mor. 12301.
Page: 741↓
Page: 742↓
The result of an examination of the cases, then, is by, no means adverse to the principle on which questions of this kind ought to be decided—the principle stated in express terms by Sir J. Stewart in his answers to Dirleton's Doubts, and sanctioned by Mr. Erskine and Lord Kaimes,—the principle upon which the foreign jurists proceed, and which has been held clearly to be the law in this country, that the lex fori must govern. Considerable discrepancy exists among the earlier Scotch decisions; but the exclusion of the lex loci contractûs is upon the whole the prevailing rule, and this has been finally and authoritatively established by the judgment of this House. The law of the domicile is only adopted (when the cases are rightly considered) with a view to the jurisdiction, that is, to the forum. The lex loci solutionis apart from the domicile and forum, while it is excluded by clear and weighty decisions, will only be found supported by one or two cases of recent date, which are exceptionable authorities on other grounds, proving a great deal too much, as Glynn v. Johnstone, or proceeding upon a manifestly incorrect view of the matter in dispute, as Rickman v. Maclachlan. If a contract be made in one country to be executed in another, and is sued upon in a third, where the defendant has no domicile at the time of the action, and had none at the date of the contract, it is not contended that any authority exists in any case for admitting the law of the second country. Taking the exclusion of the lex loci contractús as settled law, where the locus contractûs and locus solutionis are the same, no reason can be given for admitting the law of that place which is not at variance with the cases where the locus solutionis was disregarded. It may be admitted,
Page: 743↓
Where it became necessary to overrule some decisions, and to shake some doctrines which have been perhaps incautiously assumed, or hastily ventilated in dicta, rather than formally laid down as the grounds of adjudication, yet have proceeded from quarters most justly commanding the highest respect, it was impossible to recommend such a course to your Lordships without an anxious examination of all the authorities, and this must be my excuse for having gone so minutely into the question. It is to be understood that, in reversing the most material part of the interlocutor appealed from, your Lordships are not introducing into Scotland the law of England, or the general law of the commercial world, but only sanctioning a return to the principles which, after some fluctuations of judicial authority, are found, upon a view of the whole subject, to be the real doctrines of the Scottish law itself. Nevertheless there cannot be a doubt that, if the balance of authorities in that law were found to hang even or nearly even, the cast ought to be given in favour of a rule recommended by its great convenience, its exact conformity with general principles, and its adoption in most other countries.
Page: 744↓
If, then, the sexennial prescription is an answer to this action brought in Scotland, do the proceedings which took place before the French Court interrupt that prescription? The interlocutor holds, and most correctly holds, that if the French prescription be the rule, the French proceeding being admitted to be an interruption in France must be also an interruption in Scotland. But it denies the force of that proceeding to interrupt the Scotch prescription, if the Scotch law be the rule; and I think of this there can really be no doubt, admitting or rather not denying (for the position does not arise upon the facts) that a regular judgment in foro contentioso between the parties to a suit in France might interrupt the Scotch prescription in favour of one of these parties. There was here nothing of the kind. The acceptor was in France, not voluntarily, but by compulsion, and as a prisoner. He was moreover an alien enemy there, and could not appear in court to defend himself or to sue. Then he was out of France not only before the proceeding was instituted, but before the day of payment had arrived. He never received any notice of the action, and had no property within the country, either real or personal, by which he could be rendered amenable to the jurisdiction. It cannot be contended that a proceeding of this description is sufficient to interrupt.
But the question is said to arise, whether the bill being supposed extinguished by the prescription, the French judgment may not be sued upon as a substantive ground of debt?
The question is not raised here at all, whether or not the French decree, if admitted to be the ground of action, is conclusive, for the interlocutor repones the defendant
Page: 745↓
It is, however, fitting to add something respecting the force of the foreign judgment, in case it should be deemed that it is available as a ground of debt, supposing the prescription only to have the effect of destroying the acceptance. If that judgment is neither an interruption of the prescription, nor such a proceeding as in any way continues the original debt, nor in itself conclusive evidence of a debt independent of the acceptance, I do not
Page: 746↓
“We confine our judgment,”
say their Lordships, “to cases where the party owed allegiance to the law of the country from being born within it, and having within it property under the protection of that law.” Becquet v. Macartby 1
Page: 747↓
Upon the whole matter I am humbly of opinion, that your Lordships ought in this case to reverse the interlocutors of the 10th June 1835 and 20th January 1836, appealed against; declare that the defence of the sexennial prescription, according to the law of Scotland, ought to be sustained; that this prescription has suffered no interruption by reason of the proceedings in the French court; that these proceedings do not constitute a new ground of debt nor evidence of a debt, independent of the bill libelled on; and that the debt can only be proved by writ or oath of party, reserving all defences to the
_________________ Footnote _________________
1 2 Barn, & Adol. p. 951.
Page: 748↓
The House of Lords accordingly pronounced this judgment:—
It is ordered and adjudged by the Lords Spiritual and Temporal in Parliament assembled, That the said interlocutors, in so far as complained of in the said appeal, be and the same are hereby reversed. And is declared, That the defence of the sexennial prescription according to the law of Scotland ought to be sustained; that this prescription has suffered no interruption by reason of the proceedings of the French court; that these proceedings do not constitute a new ground of debt nor evidence of the debt, independent of the bill libelled on, and that the debt can only be proved by the writ or oath of party, reserving all defences to the appellant. And it is further ordered and adjudged, That with this declaration the cause be remitted back to the Court of Session in Scotland, to do therein as shall be just and consistent with this judgment.
Solicitors: Richardson and Connel — Spottiswoode and Robertson, Solicitors.
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Case for the Opinion of French Counsel in causâ Lippmann and Attorney against Sir W. H. Don and his Tutor-at-law.
In the autumn of 1809 the late Sir Alexander Don Baronet, of Newton Don in the kingdom of Scotland, was in Paris in consequence of having been detained by Buonaparte, with other British subjects who were travelling in France, when hostilities commenced in 1803. In consequence, it is said, of being involved in pecuniary embarrassments, he subscribed two bills of exchange, payable not at any particular place, though addressed to the acceptor at the Hotel de Richelieu, Paris, on the 1st of March following, conceived in the following terms, in favour of the pursuer as payee:
Versail, le 13 9bre 1809. Bon pour 20,000 fr.
Au premier Mars prochain paye par cette première de change, à l'ordre de M. Lippmann, le somme de vingt mille francs, valeur recu, sans autre avis.
A Monsieur, Bon pour vingt mille francs.
Mon. Don. (Signed) Chas. Fagan.
Hotel Richelieu, Rue Neuve, St. Augustin, Paris.
Accepté pour le somme de vingt mille francs, payable le premier Mars 1810. (Signed) Alexander Don.
Versail, le 13 9bre 1809. Bon pour 20,000 fr.
Au premier Mars prochain paye par cette première de change, a l'ordre de M. Lippmann, le somme de vingt mille francs, valeur reçu, sans autre avis.
A Monsieur, Bon pour vingt mille francs.
Mon. Don. (Signed) Chas. Fagan.
Hotel Richelieu, Rue Neuve, St. Augustin, Paris. Accepté pour le somme de vingt mille francs, payable le premier Mars 1810. (Signed) Alexander Don.
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There is no other proof of the value of these bills having been paid to Sir Alexander Don, excepting what appears on the face of the documents themselves. Early in February 1810, and before the bills became due, Sir Alexander Don returned to Scotland. These bills, when they became due, were not paid, and they were protested in Paris for nonpayment against the acceptor, and the dishonour was intimated to Charles Fagan the drawer, but not to Sir Alexander Don, who was then in Scotland. An action was afterwards raised by the pursuer, M. Lippmann, the payee of the bills, before the Tribunal of Commerce, of the department of the Seine of Paris, against both the drawer and acceptor of these bills as defenders. This process was said to be served upon the defender at Paris, who is erroneously designated as a merchant; but no citation was received by Sir Alexander Don, the acceptor, in this country, which was impossible, the two nations being then at war. A citation, however, was left at the Hotel de Richelieu, where Sir Alexander had resided, when he signed the bills, but the officer was there informed that he had left it four months before; in consequence of which answer, by which it appeared that Sir Alexander Don had no residence known in France, he posted up a copy of the summons against the principal door of the Tribunal of Commerce at Paris, and took another to the Imperial Attorney of the Tribunal of First Instance, of the department of the Seine.
On the 25th of July 1810 the pursuer obtained a judgment against both the defenders, viz. against the drawer, who appeared by his attorney, and admitted the validity of the debt, and against Sir Alexander Don, in absence, after, as is alleged, the forms according to the law of France had been gone through, where the defender does not appear. This judgment was for the principal sum in the bills, with interest and expenses. This judgment was intimated on the 2d October 1810 at the Hotel de Richelieu, where the bill was addressed; but Sir Alexander Don was not there at that time, nor did any intimation ever reach him in Scotland, where he then resided. The pursuer then, in default of the acceptor, put the judgment in execution against Charles Fagan the
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In these circumstances the opinion of French counsel is requested upon the following points of French law, occurring in the case:—1. According to the French law, has the Tribunal of Commerce, in the circumstances before set forth, jurisdiction over Sir Alexander Don, an alien, enemy, and in Britain at the date of citation, and of the judgment by default, obtained against him? And is it competent, and consistent with the law of France, to cite the subjects of a country at war with France, and not within its territory, nor having any estate or effects there, to appear before the hostile tribunals of France, and in default thereof to pronounce an effectual
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(Signed) A. Alison.
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Opinion of Mr. Jacquinot Pumpelune, late Attorney General at the Royal Court of Paris, and of Mr. Berard Des Glajeux, late Advocate General at the said Court, on the questions which the Court of Edinburgh has done them the honour to submit to them in the Case Lippmann and his Mandatory against Sir William Henry Don and his Tutor-at-law.
(Translated from the French.)
The undersigned being assembled in order to deliberate on the questions which the Lord Ordinary at the Court of Edinburgh has done them the honour to submit to them, and being penetrated with the duty imposed upon them by this honourable and important mission which has been confided to them, and in consequence of the existing documents in the case of Lippmann and his mandatory against Sir William Henry Don and his tutor-at-law, and which documents they have ordered to be placed before them; they will, after having scrupulously examined the above-named documents and the points of law relative to this suit, religiously pronounce their sentiments and the principles of the French laws on each of the questions submitted to them. However, they think it their duty first of all to make a few general observations, which appear to them to be of a nature to render their answer on each question more precise.
In the first case, it is of importance that two points should be clearly established, the nature of the titles which form the subject in dispute, and the nature of the judgment which has validated these titles.
1st. The nature of the titles. These titles, termed bills of exchange, do not unite in their form all the conditions required by the French laws, and consequently would not be susceptible simply of themselves to produce all the effects thereof. The value in the bill of exchange is simply announced, received; but the French law does not content
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There results from this circumstance an essential difference between a bill of exchange and a promissory note. A bill of exchange is always in itself a commercial deed, and consequently subjects whoever may have signed it, whether he be a merchant or not. (save the exceptions in favour of women,) to the jurisdiction of the Tribunal of Commerce. A simple promise or promissory note (mandat) is, on the contrary, a commercial transaction, only inasmuch as it has served for a mercantile transaction, or that it has been signed by a merchant. It is, therefore, only from this fact or this character, and not in its full right and of itself, that a promissory note (mandat) is subjected to a commercial tribunal. Nevertheless, even in a case where a commercial transaction has not been proved, or where the signature of a merchant is wanting, the tribunal of commerce, if a dispute relative to a simple promise should be laid before it, may, according to law, decide upon it, provided the defendant does not require the case to be referred to the civil tribunal (Tribunal Civil). See Commercial Code, Art. 636. The mode of execution with regard to a promissory note and a bill of exchange is not the same. A bill of exchange carries with it the right of arresting a debtor; a promissory note or simple promise is not liable to the same consequences. Finally, and even in consequence of the privileges attached to a bill of exchange, the liability of a bill of exchange only lasts five years; at the expiration of that term it is prescribed. Promissory notes, as well as common obligations, are only prescribed in thirty years. These distinctions being settled, and the titles in question being but simple promises or promissory notes, from the defect of the value not having been sufficiently indicated, they ought to
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2d. Nature of the judgment of 1810. This judgment is become definitive, if in other respects the legal formalities have been fulfilled, which will be the subject of an ulterior examination; it is become definitive, because no appeal was made against it, because no opposition in any shape whatever took place; and as there was even acquiescence on the part of one of the defendants who was present, this judgment from that moment acquired all the authority of a case definitely judged; what the judgment therefore has pronounced has become irrevocable.
This character of irrevocability does not only exist with regard to the nature given to the titles, but likewise exists with regard to the dispositions applied to them, for every thing is coherent in this judgment, and the disposition necessarily results from the nature of the title, the execution of which is demanded. Now the judgment of the Tribunal of Commerce, pronounced on the 25th July 1810 in favour of Mr. Lippmann against Charles Fagan and Sir Alexander Don, characterizes the titles signed by the latter as bills of exchange, and the motive of the judgment is remarkable inasmuch as it proves the validity of these titles as bills of exchange, because they were not attacked by the defendants. It is mentioned therein, “Considering that neither the demand nor the titles are contested by the defendants, and that the question is concerning bills of exchange, the validity of which has not been attacked by the defendants, and that Mr. Fagan acknowledges the debt, and promises payment thereof, provided a term and delay of nine months be granted him,” these titles are therefore now truly acknowledged to be bills of exchange, not only because they have been judged to be such, but likewise because their validity has not been attacked by the
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First question:—
“According to the French law, has the Tribunal of Commerce in the circumstances before set forth jurisdiction over Sir Alexander Don, an alien, enemy, and in Britain at the date of citation, and of the judgment by default obtained against him? And is it competent and consistent with the law of France to cite the subjects of a country at war with France, and not within its territory, nor having any estate or effects there, to appear before the hostile tribunals of France, and in default thereof to pronounce an effectual judgment or decree against the party not appearing?”
In order to answer fully this question, it will be necessary to appreciate the jurisdiction of the Tribunal of Commerce over Sir Alexander Don in two respects:—1st. In respect to his quality as a stranger, enemy, and a subject of a country at war with France; 2d. In respect to the quality of a merchant which the judgment attributes to him.
In the first respect the question is a general one, and
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The question, considered in the first point of view, cannot cause any difficulty. It is a principle of the law of France that a stranger, even a non-resident in France, may be cited before the French tribunal in order to fulfil the obligations contracted by him in France towards a Frenchman. (Civil Code, Art. 14.) Every French tribunal is therefore competent, according to the nature of the obligations, to exercise in such case its jurisdiction over a foreigner. A foreigner, on entering into a contract in any other country than his own, has done an act according to the law of nations by obliging himself to perform in that very country an engagement which he has contracted; he has voluntarily renounced, in respect to this obligation, the jurisdiction and the law of his own country, and has no longer the right to invoke the maxim, Actor sequitur forum rei. It is not necessary on that account that the foreigner should still reside in France at the moment the performance of the contract is claimed; it is quite enough for him to have resided there when the contract was entered into; it is at that moment, and by that very act, that the competence of the French tribunal has been established. Article 14. of the Civil Code, which contains these principles, it is true, requires for their application this condition, namely, that the contract shall have been made with a Frenchman; but this quality does not appear to be disputed in the person of Mr. Lippmann. It is, however, certain that Mr. Lippmann has been settled in France a long while, and that he enjoys there the same civil rights which are enjoyed by Frenchmen. This alone, therefore, would be sufficient to enable him (among the rest of these civil rights) to exercise the power of citing a foreigner before the tribunal of France. A decree of the Court of Cassation, dated on the 24th of April 1827, has formally established this doctrine. (Journal of the Palace, vol. 3d of the year 1827, page 405)
There is another reason which leaves no doubt as to the application in this case of article 14. of the Civil Code. The question is concerning bills of exchange and commercial
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These principles, which have already been admitted by the jurisprudence, have been definitely acknowledged by a decree of the Court of Cassation, dated the 26th November 1828. (Journal of the Palace, vol. 1. of 1829, page 75):—
“Considering in law, say jurisprudence, says this judgment, that article 420. of the Commercial Code does not make any difference between a foreigner and a Frenchman, and that it was not the legislators intention to make any, as, according to the ancient jurisprudence, and the principles acknowledged during the discussion on the civil code, it is certain that the French tribunals are obliged to give judgment in commercial transactions effected in France by foreigners.”
Such are the principles which are constantly acted upon in France towards a foreigner with regard to the power of making him appear before the French tribunals on account of obligations entered into in France.
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On applying, therefore, the right to the fact, or first part of the question, the answer, according to the French law, will be affirmative, namely, that Sir Alexander Don, although a foreigner, although non-resident in France at the period of citation, although the subject of a country at war with France, his citation before a French tribunal, on account of bills of exchange accepted by him and made payable in France, was perfectly valid. In the second place it becomes necessary to appreciate the competence of the French tribunal, inasmuch as it is a Tribunal of Commerce and exceptional, and on account of the quality of a merchant attributed to Sir Alexander Don. This competency can easily be proved. First of all, we must remember that the titles are bills of exchange, because it has been so acknowledged and judged, one of the parties concerned being present. Now bills of exchange are therefore essentially commercial transactions with every person, and, according to law, legally subject those by whom they are signed, whether merchants or not, to the jurisdiction of the Tribunal of Commerce. (Art. 631. and 632. of the Commercial Code.) All that was therefore required was to know the nature of the com-commercial
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But there exists another reason for establishing the competency of the Tribunal of Commerce. This reason is drawn from the quality of Charles Fagan, the drawer of the bills, having been acknowledged to be that of a merchant before the Tribunal of Commerce. Charles Fagan appeared before the Court in the person of his attorney, and yet he did not deny the jurisdiction of the Tribunal of Commerce on account of his not being a merchant; on the contrary, he acknowledged its jurisdiction by consenting to the payment of the sum claimed. He has therefore been lawfully designated a merchant; this quality has therefore been considered in him as unquestionable. If therefore a commercial effect, which perhaps might not even be a bill of exchange, but simply a promise or bill to order, bears the signature of different persons not merchants, it will suffice for only one of their signatures to be that of a merchant, in order to give the Tribunal of Commerce a right of examining and passing judgment in the case: a merchant draws with him before its jurisdiction every person that is not a merchant; such is the express stipulation of article 637. of the Commercial Code. The Tribunal of Commerce was therefore, in a double point of view, competent to take cognizance of the demand made against Sir Alexander Don. It was in this respect of very little consequence whether he had any property or estates in France or not. It is true that real estates are specially governed by the laws of the country, but obligations contracted in France personally by foreigners are likewise submitted to the laws.
It ought to be observed here, that the question does not concern obligations that proceed from the laws which affect the condition and capacity of the person, and to which he is every where subjected. A foreigner in France always remains under the empire of the laws of his own country as far as regards his condition or capacity. But the question here is concerning obligations which belong to the rights of nations, and regards persons only inasmuch as they have entered into an engagement to execute them;
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We must here add a consideration in equity. Sir Alexander Don was not sued alone; Charles Fagan was cited conjointly with him; their cause was a common cause, their liability was in solidum; their interest and their means of defence were the same; Charles Fagan appeared; their case therefore received all possible assistance, and the condemnation was not pronounced without the defence having been heard.
Second question:—
“Is there any period within which bills prescribe by the laws of France; and when is that period in the particular circumstances, as hostilities continued till April 1814?”
The answer to this question is to be found in article 189 of the Commercial Code, worded thus:—
“All actions relating to bills of exchange prescribe every five years, calculating from the day of protest, or from the last day of the judicial proceedings, unless there has been a condemnation, or unless the debt has not been acknowledged by a separate act.”
The prescription of a bill of exchange, therefore, takes place at the expiration of five years; this prescription is in force against every person,
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Third question:—
“Does the French law hold that a decree obtained under the aforesaid circumstances against the debtor, or on a bill in France, stops the prescription of the bill, and if it does stop it, what is the period within which the decree itself piescribes?”
The effect of the judgment obtained, as it has just been stated, is to cause it to take the place of the bill of exchange, and thus to become a new title in the hands of the creditor. There can therefore be no further question about the prescription of the bill of exchange, as this prescription could not have taken place if there had been no condemnation, “unless the condemnation had not taken place,” and the condemnation having been pronounced has rendered every prescription of the bill of exchange impossible. But the judgment itself may be prescribed; however, it can only take place in thirty years. The action which results therefrom, is considered as belonging to the personal actions which article 2262 of the Civil Code only subjects to prescription every thirty years. The prescription, therefore, cannot be opposed to the judgment of 1810.
Fourth question:—
“What effect is given by the French law to a decree in absence against a foreigner who has contracted a personal debt in France, where that foreigner has left the country before citation, and he has received no citation, and never appeared in the action?”
A judgment by default has in the above-mentioned cases the same effect in France as if it had been pronounced peremptorily (contradictoirement)
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These considerations, all powerful as they are in equity, would not suffice to determine the undersigned to declare that the judgment of the year 1810 could not have been prescribed. Being called upon by the important mission entrusted to them to make the sole authority of the law speak, they will not substitute for it their opinion, however well founded it might appear to them. It is therefore true that the judgment of the year 1810, was not executed against Sir Alexander Don in the sense of article 159 of the Code of Civil Proceedings. It is true that the execution of the judgment has not been manifested with respect to him by one of those acts, in consequence of which the law reputes the judgment to have been executed. It is likewise true that the law does not make any distinction in regard to the execution of the judgment between a foreigner and a person not being a foreigner. If, therefore, Sir Alexander Don had been the only person concerned in the case, the prescription might be opposed, and the judgment reputed null with regard to him.
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All that now remains to be done is to examine if according to these principles the judgment has been executed with respect to one of these debtors in solidum. The fact is therefore not doubtful; there results from the documents that repeated proceedings have taken place against Charles Fagan, whose furniture has been seized and sold, and whose body was sought for, in consequence of a warrant having been issued for his arrest. The execution of the judgment, as far as regards him, has therefore been complete, and from that moment the effect of these prosecutions has been to prevent any nonsuiting of the judgment against Sir Alexander Don on account of his obligation in solidum. The judgment of 1810 has therefore, though pronounced by default against Sir Alexander Don, preserved its full force against him. It is, however, the duty of the undersigned here to declare that Sir Alexander Don might sue for redress in France against this judgment, for, next to this rule, saying that the execution of the judgment against one of these debtors in solidum interrupts the prescription or nonsuiting with
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This is likewise what results from the decree already mentioned of the Court of Cassation of the 7th of December 1825. “The party not appearing,” it says, “always retains the right of forming his opposition, and to make good all the reasons which he may have to offer against the condemnation when they come to put it to execution against his person.” It must therefore be admitted, that as the judgment of 1810 had not been put in force against Sir Alexander Don, he could still have been allowed to protest against it, and likewise that he would have the same right to-day; for although the execution of this judgment against Charles Fagan may have preserved to this judgment all its effects, it has not deprived Sir Alexander Don of his right of protesting against it whenever it should be executed against him. This right which would have have belonged to Sir Alexander Don, has without a doubt descended to his heir or representative as well as the liability to which he was subjected. It must therefore be considered as a fact, that Sir Alexander Don or his heir might even to-day protest against the judgment of 1810.
But here it will be necessary to state a few rules. According to the law of France there is no nullity by right. The protest against the judgment, which is considered null, must be made before the very tribunal which has pronounced the judgment. It is therefore in France, and before the Tribunal of Commerce, that the opposition ought to be made. Until then the judgment remains in full force.
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Secondly, it is necessary to distinguish in this judgment the subject which has been judged, and which becomes, henceforth inattackable, from what may yet be judged, and which therefore is subject to opposition. One may easily conceive that when the question involves a liability in solidum, the same thing cannot at the same time be and not be; the same title, for instance, cannot be a bill of exchange, and not be such. Thus every thing that concerns the debt and the case itself can no further be placed in doubt; in this respect the case is irrevocably judged, otherwise nothing would as yet have been finished in the judgments, and the dishonesty in one of the parties not having appeared would suffice to revive all the questions again. But whatever concerns the person, or the exceptions to which a person is entitled, may be the subject of a new trial or examination, because, in point of fact, nothing has been judged in that respect; these exceptions hitherto not having been invoked. Thus the exception concerning Sir Alexander Don personally, as not being a merchant, might be brought forward again to-day with regard to the opposition; the right of bringing it forward, therefore, still belongs to his heirs.
But it is a part of the task of the undersigned to point out at the same time what would be the consequence of this right before the French tribunals. The exception drawn for Sir Alexander Don not having been a merchant could not be invoked to show the incompetency of the Tribunal of Commerce with respect to his person. In the answer to the first question the following double motive was brought forward, namely, that the question was concerning bills of exchange, and that Charles Fagan, one of the parties signing, was a merchant, or judicially reputed such; two points irrevocably judged. The judgment ordering the payment of the bills of exchange would therefore remain inattackable. The only effect of the exception might have been to discharge Sir Alexander Don from bodily imprisonment, in case the bill had been a simple promissory note, conformably to the last rule of article 637. of the Commercial Code. But, on the one hand, this rule could not be applied, the title being a bill of exchange; and, on the other hand, even this exception
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On recapitulating the question, it appears that the judgment rendered by default against Sir Alexander Don has not been prescribed, because its execution against one of the debtors in solidum has interrupted the prescription with respect to the other. It would still be susceptible of opposition, but this opposition could only be made in France before the tribunal which pronounced the judgment. Therefore, on appreciating this opposition according to the laws of France it would be null in all its results. We are therefore led to conclude that the judgment rendered by default against Sir Alexander Don, in the above-mentioned circumstances, has the same force and the same effects as a peremptory judgment pronounced after the parties have been heard, and which requires the force of a case on which judgment has been passed.
Fifth Question:—
“Does it make any difference by the French law, in the present case, that the proceedings above mentioned took place in the French court against the drawer in the bills of exchange, who did appear, although the acceptor did not; and what would be the effect by the French law of such proceedings against the drawer in a question with the heir of the acceptor, that acceptor having been a foreigner, who never appeared in the action ?”
According to the French law, the bearer of a bill of exchange may prosecute indistinctly either the drawer, acceptor, or both of them together; and the condemnation in both cases produces the same effects. A bill of exchange creates an obligation in solidum between those that have signed it; it is therefore a rule that a condemnation pronounced against the debtor in solidum is a judgment against all the others. In fact, says the author of the Repertory on Jurisprudence, in his questions on law, at the word “chose
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“Sed et si unus ex pluribus debendi reis judicio conventus per sententiam judicio absolutus sit alter ultra nequit efficaciter conveniri.”
But, from the same principle, the judgment pronounced against one of the debtors in solidum is likewise considered as being likewise pronounced against his co-debtors. In consequence of these principles, even if the acceptor of the bill of exchange should not have been prosecuted, the condemnation pronounced against the drawer would have its full effect against him. We could only make good the exceptions which concern him personally, as it has been stated in answer to the preceding question, because these exceptions have remained entire, and do not affect the cause of the obligation. But if it is so in the case where the acceptor was not a party concerned in the judgment, it is most certainly so when he has been cited, and when the condemnation has been pronounced conjointly against him. The fact of his nonappearance can make no alteration in the consequences, which proceed from the force of principles, and from the nature of the things.
Now, as to the effect of the judgment against the heir of the acceptor, it is the same with regard to the property as it was with respect to the acceptor himself. The heir, in succeeding to the property of his predecessors, succeeds
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Sixth Question:—
“Would it be held sufficient proof of a debt in the French courts that a bill of exchange is produced with the name of the defender attached to it as acceptor, followed up by proceedings in which decree in absence was pronounced against him, as above set forth, at the distance of nineteen years from the date of the bill, without any proof of the value of the bill having been advanced to the acceptor, farther than from what appears from the bill itself, and without any action having been brought against the acceptor in his own country, although his residence then was well known, and his solvency not questioned during a period of sixteen years before his death; or, is the production of the bill with the acceptor's signature admitted, and the said judicial proceedings, sufficient to establish the debt against the minor heir, and to exclude all these considerations ?”
An affirmative answer upon these questions cannot be doubted in France, according to the principles laid down. The bill of exchange is of itself a proof, inasmuch as it acknowledges the value received. The person on whom the bill of exchange is drawn is at liberty to accept it or not, but having accepted it he acknowledges having received the value. The law does not admit of any proof foreign to the title. From that very moment, too, the acceptor binds himself towards the holding the bill of exchange. The funds not being supplied becomes a matter of consideration between the acceptor and the drawer; but the rights of the holder of the bill remain the same with regard to the acceptor although no funds have been provided, and the latter is, nevertheless, bound to pay, without prejudice to his claim against the drawer on account of the order he had received to that effect. A period of nineteen years and upwards having elapsed since the date of the draft can in no manner modify the obligation, as it results at present from a judgment which
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Moreover, what has been said concerning the judgment and the citation in France is applicable here. It will suffice to add, on the one hand, that although the fact of a foreigner having a fortune and estates in his own country be notorious, it would not deprive a Frenchman of his right to prosecute him in France, and, on the other hand, that the state of war, which existed between England and France at the period the bills became due, did not allow the prosecution of the condemnation. All contrary considerations remain without effect in presence of these principles; and it has already been explained, with regard to the heir, that his liability is the same as his predecessor's; his minority can make no difference in this question.
Seventh Question:—
“Are there any informalities or defects in point of form or otherwise in the documents or proceedings which would render them ineffectual according to the law of France?”
This question is of high importance, for if there existed in the documents or proceedings any defect which rendered them null the judgment itself would be annulled; nothing would have been done or judged. It must however be clearly understood that this nullity would not follow as a right, but that a judgment must be pronounced to that effect, and Mr. Lippmann would still have the right of beginning the prosecution over again in France against the heir of Sir Alexander Don. It would therefore be necessary to compare the documents and the proceedings with the dispositions of the law. The documents relating to the suit are, properly speaking, the titles and the judgment. The proceedings are composed of the facts which have preceded the judgment, and of those which have followed it.
With regard to the documents, and in the first instance the titles, it has been laid down by the preliminary observations, that the titles, styled the bills of exchange, announcing only the value received, without mentioning the nature of the value, were deficient with respect to one of the conditions prescribed by the French law for bills of exchange; but it
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In its form this judgment offers nothing but what is regular, and conform to whatever is laid down by the French laws. As to the acts of proceedings, it has been proved in the judgment itself that the citation was served twice upon Sir Alexander Don, first at his last place of residence, Hotel de Richelieu, Rue Neuve, St. Augustin; but on the portress declaring that he had left that hotel four months before, and that he was supposed to be in England, without her however knowing in what part, the assignations were stuck up at the principal door of the Audience Court of the Tribunal of Commerce, and duplicates thereof were given to the King's Attorney General, who countersigned the originals. The fulfilment of these formalities has accomplished the point of law expressed in Article 698 of the Code of Proceedings, with regard to those persons who having lived in France are no longer resident there, and whose actual residence is unknown. Sir Alexander Don was in this case; he had left France without making known where he might be met with. The same formalities have been observed in signifying the judgment, and the order that followed it. The acts which are joined to the documents bear testimony thereof. There are therefore in the proceedings no informalities or defects which might cause its nullity. All the proceedings have been executed in conformity with the French laws, and the judgment receives new force from the regularity of the acts by which it is surrounded.
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This judgment therefore remains in this cause with all the authority of a judgment which has acquired the force of law; and the undersigned, on ending the honourable mission intrusted to them, hope that they may be allowed to submit the following consideration to the court of Edinburgh:—That it is of importance to the transactions which bind people of different countries, that obligations founded on the rights of nations should be respected every where, and that the tribunal in every country should lend itself a mutual support in order to cause them to be respected.
Done and deliberated at Paris this 20th day of June 1834. (Signed) Jacqinot Pampelune, Ancien Procureur General près la Cour Royale de Paris. (Signed) Berard des Glajeux, Ancien Avocat General près la Cour Royale de Paris.
I the under-written, sworn interpreter of the Supreme Court of Cassation, the Royal Court of Appeal, the Court of Common Pleas, the Tribunal of Commerce, &c., do hereby certify that the foregoing is a true and faithful translation, agreeing with the original in the French language, which was presented to me, and which I have returned after putting my name and paraph thereto.—Ne varietur. Paris, the 26th July 1834. (No. 3741, Reg re. C.) Approved of; three words erased being null.—(Signed) Frederic Lameyer.
These are to certify that the above is the true signature of Mr. Frederic Lameyer, sworn interpreter of the Supreme Court of Cassation, &c. &c. &c., of Paris.—Paris, this 26th day of July 1834.
His Britannic Majesty's Consul at Paris.
(Signed) Thomas Pickford.