Scottish Court of Session Decisions

Subject_1 FOREIGN.
Subject_2 DIVISION V.

Effect, in Scotland, of personal Obligation executed in a Foreign country, according to the Law of the place.

Creditors of Alexander Gray
v.
Robert Grant

Date: 1 December 1789
Case No. No 33.

In a process before the Court of Session, respect in a debt contracted in England, parole proof was found inadmissible, tho', by the law of England, it is admissible in all cases.

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Alexander Gray having succeeded as heir to his brother John Gray, a claim was made in the ranking of Alexander's Creditors after his death, for Robert Grant, on account of certain sums of money paid by him in London to John Grant, brother to William Grant of Quebec. The payments were made, it was said, in consequence of a letter of guarantee by John Gray, in which he engaged himself as surety for repayment of the money which Robert should advance “for fitting out John Grant to India, and as the price of goods which the latter had carried out to Quebec in the preceding year.”

In a process of constitution against the Representatives of Alexander Gray, Robert Grant, in proof of his account of the money so advanced in London, had previously produced two witnesses, one of whom, as it appeared from his testimony, had an active hand in the transaction, and in the absence of John Gray had, as his attorney, settled the account with Robert Grant; and both he and the other witness, who likewise swore to a complete cause of knowledge, verified the claim to its full amount. The former witness too mentioned, that John Gray had in several letters explicitly approved of the payments made to John Grant, and that he gave those letters to Alexander Gray for his information, who never returned them.

Though decree was obtained in that action, yet being res inter alios acta, it could have no effect against the creditors; and besides, the process was so far irregular that it was not preceded by a general charge.

The Creditors farther objected, That parole-evidence was in this case altogether inadmissible; for that in order to support the allegation of the payment of money, some written document was necessary: but here the only writing was the letter of guarantee, which, though it might authorise a payment to the extent of a reasonable allowance for an outfit to India, and of the other article mentioned, afforded no sanction to the remainder of the account to a far greater amount, even if the payment had been established.

To this, so far as respected the proof of payment, the answer was, That the evidence brought would have been fully sufficient in England, which was the locus contractus, parole-proof of the payment of money being there admitted in all cases; and therefore it ought to be equally received in this country, when the validity of the English contract comes to be tried here.

It was likewise objected, that the process of constitution not having been raised until more than six years had elapsed after the money was all advanced, the claim was precluded by the English sexennial limitation; as it was also by the Scotch triennial prescription, which, after the death of John Gray, had run against Alexander while in Scotland.

The answer, however, seemed satisfactory, that William Grant in Quebec was the heir of John Grant the debtor, and against him neither the English nor Scotch prescription could run; and the debt thus preserved against the principal debtor, subsisted equally against the co-obligant John Gray and his representatives.

The Court, on the report of the Lord Ordinary, pronounced this interlocutor:

‘Repel the plea of a res judicata stated for Robert Grant; also repel the objections stated by the Creditors of Alexander Gray to the debt in question, founded upon the statutes of limitations in England, and upon the triennial prescription in Scotland: Find, That the claim of the said Robert Grant upon the letter of guarantee from John Gray now deceased, can only extend to the sums which John Grant had occasion for to fit him out for the East Indies, and to the payment of sundry goods carried out to Quebec the year preceding the letter of guarantee for account of William Grant: Find, That the claim made by the said Robert Grant cannot be supported by parole-evidence; and therefore that the proof founded upon by him in support of his said claim, is neither competent nor relevant, and refuse to sustain the same.’

Reporter, Lord Stonefield. For the Creditors, Murray. Act. Buchan-Hepburn. Clerk, Mitchelson. Fac. Col. No 94. p. 170.