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Scottish Court of Session Decisions >>
Galbraith v Cunningham. [1626] Mor 4430 (15 November 1626)
URL: http://www.bailii.org/scot/cases/ScotCS/1626/Mor1104430-002.html Cite as:
[1626] Mor 4430
Foreign Writs, formal according to the Law of the place, afford action in Scotland, as obligatory jure gentium.
Subject_3 SECT. I.
Bonds without witnesses.
Galbraith v. Cunningham
Date: 15 November 1626 Case No. No 2.
Found as above.
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James Galbraith, as assignee made by Sir John Stuart of Methven, pursues Andrew Cunningham, brother to the L. Glengarnock, for payment of a sum contained in a bond made by him to the said Sir John, and made in Ireland, and after the manner of bonds formed in that kingdom. It being alleged, That the defender could not be pursued in Scotland, in respect it was a pursuit founded upon an Irish bond made in that kingdom, and pursued against the defender, who with his wife and family were actual residenters in Ireland animo remanendi; and where he had so dwelt, and remained these 14 years bypast; likeas he was denized an Irishman, and so ought to be pursued in that kingdom, as his proper forum; this allegeance was repelled, in respect the defender was a Scotsman, and that the pursuer declared, that he sought only execution against the defender, for such lands and goods as the defender had within Scotland; and which the Lords sustained for that effect.—It being also alleged, That the bond was null, because it wanted witnesses, and designed not the name of the writer; and seeing it was sustained, to produce action here in Scotland, it ought to be judged by the Scots laws; this allegeance was also repelled, in respect the pursuer offered to prove by the custom of Ireland, that bonds made after the tenor and form of this bond produced, were sufficient, and that it was the custom in that kingdom to make them so; which custom and form the Lords found to be proven, and admitted the same to probation.
Act. Belshes.Alt. Cunninghame.Clerk, Gibson.
November 16.—In the foresaid action of Galbraith contra Cunningham, mentioned supra, 15th November, an exception of payment of the sums contained in the bond being proponed, and offered to be proven by witnesses, which the defender alleged was admissible to be proven hoc modo, being payment of an Irish bond, and paid in Ireland, where the form in that country allowed probation by witnesses, the Lords found this exception probable after that manner by witnesses to be relevant, the defender always proving therewith, that by the laws of Ireland, payment of sums contained in such bonds may be proven by witnesses, and that that probation by witnesses is received and allowed by the Irish laws. Neither was it respected by the Lords, where the pursuer replied, That this pursuit being made in Scotland, and betwixt Scotsmen, the probation ought only to be admitted therefor, which is allowed by the laws of Scotland; which was repelled, because the bond being made in Ireland, and after the manner of the laws there, albeit betwixt Scotsmen, the payment might be made, and proven to be made, according to the same laws where the bond was granted, and so it might be dissolved as it was knit. Partibus ut supra.
The like decision was done 27th February 1633, betwixt L. Balbirnie and L. Urtill, whereto Scot was clerk, that a bond made of borrowed money, done in England betwixt two Scotsmen then remaining in England, animo remanendi, and made after the English form of bonds, being pursued for payment here in Scotland, and payment thereof being alleged to be made in England, and offered to be proved by witnesses, which was alleged ought to be received by the laws of England, where both the bond was made, and the payment thereof; this exception to be so proven was found relevant, albeit it was alleged to the contrary, that it should not be proven but by writ, or oath of party, conform to the laws of Scotland, where the pursuit was moved; notwithstanding whereof, the exception so to be proven was admitted, the custom of England being proven. Nam regulariter probatio fit secundum consuetudinem loci, ubi solutio fieri debet, Socin. & Bartol. See Proof.
