Scottish Court of Session Decisions

Subject_1 FOREIGN.
Subject_2 DIVISION. III.

Of transactions in a Foreign Country, meant to take Effect in Scotland.

Nicholas Junquet la Pine, Taylor
v.
The Creditors of Lord Semple

Date: 14 February 1721
Case No. No 18.

A foreign bond wanting designation of the witnesses, was sustained, though it bore a power to registrate in Scotland, being formal according to the lex loci.

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In the sale of the estate of Semple, a question arose about a bond for L. 900 Scots, granted by the deceased Francis Lord Semple to Nicholas Junquet la Pine, taylor in London, dated at London, 10th November 1699, bearing a consent to registration in the books of the Court of Session in Scotland. And it was argued against the bond, for the other Creditors of Semple, That the bond being registrable in Scotland, framed in the Scots style, and for money of a Scots denomination, and consequently designed only to have execution in Scotland, it ought to be according to the Scots forms, as much as if made in the country; but so it is, that it wants the designation of the witnesses, which is a nullity by the Scots law. It is a rule indeed, that the forms of writs are to be judged by the laws of the place where they are made; because it being understood that execution is to pass there also, the parties are presumed to agree to be determined by the laws of the place: But from the same reason it will be inferred, where execution is expressly agreed to pass in another country than that of the contract, that the laws of that country must take place from the tacit consent of the contractors, equally as there had been an express stipulation to that purpose. And to confirm this pleading, was adduced, Scot contra Henderson, No 17. p. 4450; where it was found, “That a bond made in England, but after the Scots form, and registrable in Scotland, was to be judged by the law of Scotland, and so not to be taken away by witnesses; and l. 21. obl. & act. Contraxisse unusquisque in eo loco intelligitur, in quo ut solveret se obligavit.”

To which it was answered, It is very true, every contract and every deed must be judged by the laws and rules agreed to, expressly or tacitly, by the contractors; so that as to the bond in dispute, though good by the English forms, if yet it was the will of the parties, that it should be after the Scots forms, otherwise to have no effect, unquestionably it must fall to the ground, as wanting some necessary solemnities of that law; but the argument fails, in that there is no evidence of such a consent; had it been the design in giving the bond, that Lord Semple should be bound in Scotland, and no where else, the evidence would be clear; but this will never be understood the intention of parties. The rational interpretation of such a transaction can be no other than this: His Lordship was owing to Mr Junquet la Pine the sum of L. 900 Scots, which being an absolute debt, without any qualifications, he was bound to pay it, whenever and wherever demanded; it was but equitable to give the creditor a writ, in evidence of his debt, which should be as little limited in its effects as the obligation to which it related: This he did in the only way it was possible, by making out a bond in the form of the country where it was granted; which as it was ex vi legis directly effectual there, so ex comitate in every other civilized country; and because the debtor's estate lay in Scotland, and the creditor had greatest expectation of making his payment effectual there, therefore registration was agreed to pass in that country, in order for ready execution, which could not be any where else, but by way of action. If this be a fair view of the matter, no presumption will be inferred from the clause of registration, that the parties designed to regulate this writing by the laws of Scotland; on the contrary, as it was made after the English form, there is the strongest evidence likewise from the nature of the transaction, that it was understood as a valid English obligation; and as it might have been followed forth directly by way of action in that country, our judges ex comitate will give it the same effect here. As to the decision cited on the other side, if they should endeavour to take away this bond by witnesses, the decision will be a standing rule against them; from this principle, whoso subjects himself to an obligation to be performed in a certain place, is eo ipso understood to subject himself to the laws of the place, with relation to that obligation; which is, in other words, Contraxisse unusquisque in eo loco intelligitur, in quo ut solveret se obligavit. And it is indeed plain enough, the laws where the contract is entered into, and where performance is designed, being repugnant, since both cannot take place, that the laws where performance is designed, should prevail: But upon the first reflection, this will be found to have no relation to the case in hand; for though this bond cannot be liable to be taken away by witnesses, and not taken away at the same time, nothing in nature hinders it, as it truly was designed to be at the same time a binding obligation both in England and Scotland.

‘The Lords found, That this bond is null by the law of Scotland; but that a bond granted in England, according to the laws and forms there, is effectual to produce action in Scotland, albeit by the tenor of the bond it does appear that the payment and execution was intended to be in Scotland.’

Fol. Dic. v. 1. p. 318. Rem. Dec. v. 1. No 23. p. 51.