Scottish Court of Session Decisions

Subject_1 FOREIGN.
Subject_2 DIVISION VII.

Prescription, by the Law of which Country regulated.

Mrs Jean Kerr
v.
Alexander Earl of Home

Date: 20 February 1771
Case No. No 70.

Triennial prescription applies to debts contracted in England.

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The pursuer let her house in London to the deceased William Earl of Home, the defender's brother, who possessed it from Midsummer 1752 to Lady-day 1756.

Earl William went abroad and died in the year 1761, being then due Mrs Kerr a considerable sum of money as arrears of rent. The pursuer in 1767, having brought an action in the Court of Session against Alexander Earl of Home, as representing his brother, for payment of the balance of rents due, his Lordship stated in defence, that the claim was cut off by the triennial prescription of the statute 1579, c. 83.

The cause being reported to the Court upon informations, the pursuer pleaded,

It was a rule and principle of law, both with regard to the constitution and subsistence of obligations, that the law of that country only where they were executed should be regarded, however different it might be from the practice or law of the country where such questions came to be determined, M'Morland contra Melvill, No 14. p. 4447.

From thence it followed, that every question relative to the endurance of obligations must depend upon the lex loci contractus; and that unless the law of that country had imposed a limitation which would bar an action in their own courts, the person who was sued in another country, to which he had retired, ought not to be allowed to take the benefit of any prescription which prevailed there. If the obligation was still in force in the country where it was entered into, it would be unjust to allow the debtor to get free by stepping into another country where such obligations were limited to a shorter endurance. Mackenzie's Observations on statute 1579. c. 83.

This doctrine was strictly applicable to the present question; no relevant defence could have been stated against the debt in England; so that if the triennial prescription was admitted, it would be allowing the debtor to get free of a debt justly due by the law of the country where it had been contracted. The decision Randal contra Innes, No 70. p. 4520, which the defender chiefly relied on, went upon a specialty which did not in the present instance occur. Captain Innes the debtor had resided in Scotland entirely for many years, for a period preceding his death much longer than was sufficient to found the defence of the triennial prescription; and hence he could only be pursued before a Scottish court, and according to the law of Scotland.

The defender pleaded, Whatever regard may be paid here, ex comitate, to the laws of a foreign country, with respect to the formality of contracts executed there, it could not be maintained that these laws could regulate the time and manner of execution upon such debts when sued for in this country. It was clearly laid down by the legal authorities, that the law of the place in which execution was demanded for recovery of a debt, must be the rule for regulating every thing concerning that execution. Sande. Decis. Fris. lib. 1. tit. 12.

It was equally certain that this rule applied to the plea of prescription. Every action brought for a foreign debt here was an immediate step towards execution; and of course, every plea proponed in bar of such action, had a fixed relation to the execution which would otherwise have followed. Huber de conflictu legum divers. in divers. imperiis. Voet ad digest. lib. 44. tit. 3. § 12. Principles of Equity, b. 3. c. 8. Sect. 6. B. 1. part 1. c. 5. Sect. 3.

The ancient decisions of the Court upon this point had not indeed been uniform; but as the law had gradually advanced to maturity, the question had been more thoroughly canvassed, and that comitas, which had sometimes been carried too far, reduced to proper bounds. Assignees of Thomson and Tabor, Div. 9. Sec. 4. h. t.; Thomson and Hay contra the Earl of Linlithgow, No 58. p. 4504; where the precise question as to the Scots triennial prescription was expressly decided.

This point ought to be considered as at rest. In a late case, Randal contra Innes, No 70. p. 4520, it had been found that the triennial prescription applied to debts contracted in England. This decision had been given upon the abstract point; and as to the alleged specialty, if it really in that case had any influence, it must be equally effectual here, as both the late and present Earls of Home, by being Scotsmen, and having estates in Scotland, were at all times amenable to the courts of this country.

It was observed upon the Bench, that when a creditor comes to sue in any country, he must be able to state that, according to the law of that country the debt is subsisting; which the pursuer in this case could not do.

The Lords, February 20. 1771, sustained the defence; but in doing so were a good deal moved by the defender's having a house in Scotland, which fixed a domicile, and rendered him amenable to the courts of this country.

Lord Ordinary, Justice-Clerk. For Mrs Kerr, Macqueen. Clerk, Ross. For Earl of Home, Rae. Fac. Col. No 80. p. 234.