Scottish Court of Session Decisions

Subject_1 FOREIGN.
Subject_2 DIVISION IX.

Foreign Decrees, and other Judicial acts.
Subject_3 SECT. I.

Actio rei Judicatæ.

Archibald Sinclair of the Island of Jamaica, and William Sutherland his Attorney,
v.
Mrs Frazer, and her Husband Alexander Frazer, Younger of Strichen, Esq

Date: 14 July 1768
Case No. No 79.

Found, that a foreign decree, bearing to have been in foro contentioso, had not the effect of a res judicata in Scotland, but entitled the party claiming under it, to plead that the onus probandi rested on his opponent.

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Mrs Frazer having succeeded, when under age, to an estate in Jamaica, her tutors appointed Archibald Sinclair, and one Mr Archdeacon, attornies for managing it. Mr Sinclair, however, alone acted.

When Mrs Frazer came of age, another gentleman was appointed in Mr Sinclair's place; but no settlement of accounts appears to have been made with Mr Sinclair.

The estate was sold in 1763; and, in 1767, Mr Sinclair brought an action in this Court against Mrs Frazer for a specific sum, awarded by a judgment of the Supreme Court of Judicature in the island of Jamaica, as a balance due the pursuer upon an account current with the defender. The record produced was certified by the clerk of court; his subscription by the secretary of the island, a notary public; and the secretary's subscription was confirmed by that of the governor; and the great seal of the island was appended.

The defender made some objections to the contents of the decree in point of form; but, when the cause went to the House of Peers, they were considered as arising entirely from unacquaintance with the nature of the English process.

An objection, however, of another sort was offered, viz. That the compearance made for the defender in Jamaica was not with her knowledge or authority. She therefore argued, that the decree was to be considered as a decree in absence, and ought to be opened up in course, as decrees of absence usually are, when the grounds of them are questioned: And she accordingly craved, that the pursuer should produce the vouchers of the debts he claimed, in order to introduce a fair count and reckoning between the parties.

‘The Lord Ordinary ordered the vouchers to be produced.’

The pursuer reclaimed to the inner-house, and argued, 1mo, That the decree of a Supreme Court was to be held pro veritate; so that, if the decree he produced was not disputed to be, in fact, the decree of a tribunal over which the courts in Scotland had no jurisdiction, it was as incompetent for them to examine into the grounds of decision, as to open up a judgment in foro, of their own; 2do, That, if the decree is not to be acknowledged as a res judicata, it ought, at least, to throw the onus probandi upon those who object to it.

He particularly urged, that decrees of foreign courts of justice were every where put in execution ex comitate; but that, in a case like the present, where the decree was pronounced by a British Court, there was even a necessity to give it effect; since, otherwise, the commerce and due connection between the different parts of the empire could not be preserved.

The authorities the pursuer founded on were, Voet, de re judicata, § 41.; Huber, in rat. ad leg. 75. De Jud.; Mynsingen observat. cent. obs. 69.; Justice of the Laws of the Sea, p. 427.; 1. Rolls ab. 929.; Molloy de jure maritimo, l. 3. cap. 8. § 8.—Decisions, Edwards against Prescot, No 79. p. 4535.; Wedderburn against Keith in 1760;* and Laycock against Clark, No 85. p. 4554. He likewise set forth, that decrees of the Court of Session were received in the Court of Chancery in England, and execution decreed upon them. It does not appear, from the appeal cases, out of which alone this report is collected, that any authorities were quoted by the defenders.

‘The Lords unanimously adhered to the Lord Ordinary's interlocutor.’

This determination was reversed in the House of Lords; and the principle of the decision is given in the judgment; the terms of which were,

1771. March 4.

‘It is declared, that the judgment of the Supreme Court of Jamaica ought to be received as evidence prima facie, of the debt; and that it lies upon the

* See General List of Names.

defendant to impeach the justice thereof, or to show the same to have been irregularly obtained. It is therefore Ordered and Adjudged, That the several interlocutors complained of be, and the same are hereby reversed.

Fac. Col. No 13. p. 384.