Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER, LORD FOUNTAINHALL.

Jacob Jamart
v.
Harry Jossie

Date: 5 July 1672

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Jacob Jamart pursuing Harry Jossie, for sundry sums he had paid for him as cautioner: It was alleged for the defender, that by the police and practique of Bordeaux, * the major part of one's creditors (which goes either by the sums or the number,) having accepted a cession from their debtor of all his goods, they give him a supercedere and rescriptum moratorium; and what they do in this sort binds all the rest, and they are obliged to stand to it, and the goods are divided amongst them all pro rata; that conform to this police, he had made a cession; and therefore craved, that according to the custom of Bordeaux, Jamart might make a proportional part of whatever he shall recover by virtue of this sentence furthcoming to his other creditors in Bordeaux, and that the Lords would divide it amongst them. The Lords would not regard the customs of another kingdom, nor decide conform thereto, (seeing they in the same manner rejected ours, and by acts of parliament we are ordained expressly to be governed by the king's laws, and not by the statutes and customs of any other realm;) and thought the desire of the defender was as unreasonable as if one should say, if a Frenchman had got a bond of a Scotsman, past twenty-one years, but within twenty-five, and did pursue for the sum here in Scotland, the debtor had a good defence in alleging that the bond must be regulated by the law of France; that though he was major the time he granted it by our law, yet he was minor by the French law, (which following the footsteps of the civil law, holds a man for minor till he pass twenty-five;) and therefore he had revoked the same: would not all judge this absurd? and yet it is all one with what the defender alleges, only they left the defender's other creditors free to pursue Jamart, upon his return, according to their police in Bordeaux, and to evict their shares from him, conform to their law there; of which they could take no notice, the defender being a Scotsman, the subject of the debate being here also, and the same being pursued before a Scots judicatory.

Then the defender pressed, that Jamart might at least find caution, that what he should obtain of him here shall be furthcoming to all having interest, as shall be decerned by the consul and jurats of Bordeaux.

This was repelled, because the putting him to find such a caution were alike as to deny him justice, seeing none would bind for him, a stranger, in such a considerable sum. 2do, He had land and vineyards there, so that none could doubt his responsality. Possessores immobilium non tenentur satisdare; l. 15 D. Qui satisdare cogantur. The Lords refused to put him to find caution.

Advocates' MS. No. 358, folio 146.

* And this was also the common law, l. 7. in fine, l. 8. 9. and 10D. de Pactis. Vide Schotanum, ad d. T. de Pactis, who shows the customs of Germany and Holland have receded from this now. Vide omnino l. ultimam C. Qui bonis cedere possunt. Contrarium definivit Senatus Burdegalensis ejus quod hic allegatur; ut videre licet apud Autumnum, in Censura sua Gallica ad l. 8. D. de Pactis.