Scottish Court of Session Decisions

Subject_1 FOREIGN.
Subject_2 DIVISION VII.

Prescription, by the Law of which Country regulated.

Graden
v.
Ramsay

1664. November.
Case No. No 55.

A bond granted in England being prescribed by the English law, while the parties resided there, was afterwards made the foundation of process in Scotland. The Lords repelled the English prescription, in respect the bond was drawn in the Scots form between Scotsmen, and bore a clause of registration in Scotland.

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In an action pursued by Grace Graden, as executrix to John Graden her father, against Dr Ramsay, for payment of a certain sum, contained in a bond made by the said Doctor, and some other persons, to the said deceast John, it was alleged by the Doctor, That the bond being subscribed many years ago by the Doctor, and other friends of the Earl of Holderness, a little after his death, and the money truly employed in defraying his funerals, the same was truly paid back by the Earl's executors; though after so long a time the Doctor cannot now instruct the same; but he alleges, that the bond can furnish no action against him, because it was granted at the time when both subscriber and receiver of the bond were all living in England, and the bond is dated in England, where the money was received; and therefore, as in England bonds of that antiquity do prescribe, so ought this bond, being now pursued in Scotland. It was answered, That the creditors and debtors were all Scotsmen, and the bond drawn after the Scots form, and appointed to be registered and to have execution in Scotland; and therefore it must be ruled according to the law of Scotland.

The Lords repelled the allegeance.

Fol. Dic. v. 1. p. 321. Gilmour, No 111. p. 82.