Scottish Court of Session Decisions

Subject_1 FOREIGN.
Subject_2 DIVISION IX.

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

Effect of the Lord Chancellor's Certificate of Conformity.

Sir James Rochead
v.
Mr George Scot Surveyor at Greenock

Date: 30 June 1724
Case No. No 93.

A Scotsman in London became bankrupt, and obtained the usual certificate. An action was brought against him in Scotland, for payment of a bond granted in England prior to his bankruptcy. The Lords found, that the bond being granted in England, and after the English form, must be regulated by the laws of that country; and, consequently, that execution thereon was put an end to by the commission of bankrupt and the certificate.

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In anno 1704, Mr Scot, then merchant in London, became bound in a bond after the English form, to pay to Sir James Rochead, then also residing there, the sum of L. 600 Sterling.

In the year 1706, Mr Scot's affairs having gone into disorder, a commission of bankruptcy was awarded against him, and having conformed himself in all points to the act of Parliament made in England anno quarto et quinto Annæ, entituled, ‘An act to prevent frauds frequently committed by bankrupts,’ he obtained a certificate from the commissioners and from the Lord Keeper of the Great Seal of England, as directed by that statute.

Sir James brought an action against Mr Scot, for payment of what remained unsatisfied of the foresaid bond; and Mr Scot founded his defence upon the act of Parliament, whereof the words are, “That the bankrupt conforming, &c. to the statute shall be discharged of all debts owing by him prior to his having become bankrupt;” and therefore it was contended, That since he was thereby ipso facto discharged of all the debts that he owed in England, where the act of Parliament had authority, he must in consequence be discharged of this debt, because it was contracted in England, and secured by an England bond, when both parties did reside there.

It was answered for Sir James, That there was a difference betwixt the solemnities of a writ and the execution competent upon it. As to the 1st, The solemnities usually adhibited in the place where it was executed, make it probative and binding every where; but the execution competent upon it must be regulated by the laws of the place where it is sought. Thus, though all execution passes in Scotland upon extracts of registrated bonds, yet these would not be sustained in England; and though by the law of Scotland a dyvor, after a cessio bonorum, is free from all personal diligence, yet 'tis doubted if that would protect his person in any other kingdom where the law was otherwise: And for the same reason the defender, who has the benefit of the statute of bankruptcy in England, where neither his person nor effects can be distressed for any debt prior to the bankruptcy, being now in Scotland, where the law subjects his after-acquisitions to the payment of debts prior to his bankruptcy, his plea must be determined by the law of Scotland.

Replied for the defender, That the act of Parliament does as truly extinguish this obligation as if he had a discharge of it executed in the English form, which no doubt would be sustained in Scotland, to stop all diligence upon this bond. The obligation therefore being once extinguished by the law of the place where it was entered into, and designed to take effect, it can never revive, or be the ground of an action in Scotland or any where else.

‘The Lords found, that the bond being granted in England, after the English form, must be regulated according to the laws of England.’

Reporter, Lord Pencaitland. Act. Jo. Horn. Alt. Dun. Forbes. Clerk, Gibson.

There was a letter produced from Mr Scot to Sir James, desiring he would delay further proceedings on the summons, and that he would be soon at Edinburgh and would satisfy Sir James of his willingness to do him all the justice that was in his power; but this the Lords found not binding.

Fol. Dic. v. 3. p. 227. Edgar, p. 60.