Scottish Court of Session Decisions

Subject_1 FOREIGN.
Subject_2 DIVISION IX.

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

English Administrator, whether liable to action in Scotland.

Douglas, Heron, and Company
v.
The Trustees of Andrew Grant

Date: 19 November 1793
Case No. No 107.

Found, that an English administrator having a domicile in Scotland, might be sued in the courts of this country. This judgement was reversed on appeal.

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Mr Baron Grant, on the 16th of May 1772, accepted two bills drawn on him by John Fordyce, payable 65 days after date.

The bills were indorsed to Douglas, Heron, and Company, by whom they were protested on the 23d July 1772, being the last day of grace.

A sequestration having by that time been awarded against Mr Fordyce, these bills were, in August 1772, produced for Douglas, Heron and Company, at a meeting of his creditors, as their grounds of debt.

In 1775, they, in common with Mr Fordyce's other creditors, accepted of a composition, and granted him a discharge.

On the 23d July 1778, a summons was executed against Andrew Grant, as representing his brother the Baron, for payment of the balance still due upon the bills. Andrew Grant died while this action was in dependence, after having conveyed his estate in the West Indies to trustees, by a deed in the English form, upon which they afterwards obtained letters of administration in the Prerogative Court of Canterbury.

In an action brought against the Trustees, who, though they resided chiefly in England, had a domicil in Scotland, they, inter alia,

Pleaded; 1mo, The trust-estate is subject to the law of England; the deed is executed in the English form; the trustees have found caution for their intromissions, in the Prerogative-Court, where they are liable to account, and therefore they cannot be sued in this country; Burroughs against Grant, No 131. p. 2661.

2do, The bills are prescribed. The sexennial prescription runs from the time when the bills became exigible, i. e. from the day of payment; 12 Geo. III. c 72. § 37. The days of grace were introduced, not for the sake of the debtor in the bill, but in order to regulate questions of recourse; Ersk. b. 3. tit. 2. § 33. Diligence may be raised before the days of grace are elapsed, Charles against Skirving, No 172. p. 1614.; and interest, as well as the six months allowed for registration, run from the day of payment.

Answered; 1mo, The Trustees are personally liable for the debts of the truster, to the extent of the funds in their hands. The taking out letters of administration, and finding security, are intended only as an additional safeguard to creditors and others interested in the succession, and the trustees notwithstanding may be prosecuted in any court having jurisdiction over them; Morison against Ker, No 107. p. 4601.

2do, The days of grace, or of respite, as they have been sometimes called, have been introduced in favour of the debtor in the bill; Forbes on Bills, p. 140, § 7; Kames, 6th July 1743, Ramsay against Hog, No 140. p. 1564. The last day of grace is uniformly considered by merchants as the period when payment becomes exigible. Thus in an account of bills, payable and receivable, it is always stated as the time when payment is to be made, or received: When payment is made on that day, interest is never demanded; and from it the rates of discounting, or of exchange, are always reckoned. No legal authority warrants diligence against the acceptor before the days of grace are elapsed in this country; and the contrary is established in England; 4th vol. Termly Reports, Hilary term 1791, Brown against Harraden.

The Lord Ordinary sustained the plea of prescription.

At advising a reclaiming petition, with answers, the Court seemed to be of opinion, that to interrupt the sexennial prescription, the action ought to have been commenced within six years from the day of payment.

The Lords, however, 19th February 1793, repelled the plea of prescription, in respect of the claim entered upon the bills in question in Fordyce's sequestration; and repelled also the objection to the competency of the court.

Upon advising a second petition and answers, the Court, influenced by the understanding and practice of merchants on the subject, found, “That the time requisite for completing the prescription in question, only began to run from the third or last day of grace, and therefore repelled the plea of prescription.” See Prescription.

Lord Ordinary, Alva. Act. Solicitor General Blair, and M. Ross. Alt. Tait, John Clerk. Clerk, Sinclair. Fol. Dic. v. 3. p. 231. Fac. Col. No 72. p. 157. *** This cause was appealed:

The House of Lords, 11th November 1796, ordered and adjudged, That the several interlocutors complained of in the appeal be reversed, except as to so much of the interlocutor of 19th November 1793, as finds, that the time requisite to completing the prescription in question only began to run from the third or last day of grace, and therefore repel the plea of prescription; without prejudice to any claim which Douglas, Heron, and Company may make for payment of the two bills out of the estate of Baron Grant, or out of such part thereof as have come to the hands of Andrew Grant, and for which he ought to have accounted in a suit for carrying into execution the trusts of the will of the said Andrew Grant.