Scottish Court of Session Decisions

Subject_1 FOREIGN.
Subject_2 DIVISION IV.

The Laws of a foreign State have no coercive force extra territorium. Diligence in Scotland upon foreign deeds will be regulated by the Law of Scotland.
Subject_3 SECT. I.

Foreign Assignation.

The Earl of Selkirk
v.
Gray

Date: 22 July 1708
Case No. No 19.

In a competition between an arrestment and assignation after the English form, which requires no intimation, the Lords preferred the arrester, because, though a deed established according to the forms of a foreign country may be effectual here, yet with regard to all steps of diligence in Scotland, the law of Scotland must be the rule. This judgment was reversed, on appeal.

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The Duke of Hamilton being debtor by a double bond, in the English form, to Captain Alexander Gavin, in L. 1030 Sterling, he assigns this to Sir James Gray, by a writ of attorney in rem suam, in the English manner; whereon Sir James writes to the Duke, acquainting him of his right, who returns an answer promising payment; but after this, Charles Earl of Selkirk being creditor to Captain Gavin he arrests this money in the Duke his brother's hands; and a competition arising, it was alleged for Gray, the assignee, That he was not bound to debate any preference, but insisted against the Duke on his letter promising payment, which was as sufficient to make him liable as if his assignation had been formally intimated, seeing this assurance given him made him forbear any further legal intimation, and was as good as if he had given a bond of corroboration. Answered for the Duke, There never was a more extravagant notion pleaded, than to assert, that because the Duke promised payment, therefore, though a better right supervene before payment, which the Duke could not for see, yet he must pay it to both; which shocks common sense, and is destitute of all foundation in law; and Stair, lib. 3. tit. 1. condemns it. See both Stair and Dirleton, 11th December 1674, Elphinston, voce Proof; as also Spottiswood, page 229. The Lords found this superveniency could not involve the Duke in double payment, and therefore found him only once liable. Then Gray pleaded this second ground, I must be preferred to your posterior arrestment, for my assignation needed no intimation, because, being in the English form, it summarily transmits the property, without any such solemnity as an intimation. Answered, non constat this is the law of England, which being matter of fact to us, must be proven by a declaration of their judges; but 2do, esto it were, it cannot regulate this case, which is betwixt Scotsmen, and pursued before a Scots judicatory. The Lords repelled the allegeance, and found it behoved to be regulated by the law of Scotland, which requires intimation as a necessary solemnity. 3tio, It was contended for the Earl of Selkirk, That the holograph missive letter founded on, could not prove its own date, against an arrestment, bearing a date posterior thereto, as was found, 14th Jan. 1662, Dickie, voce Proof; 21st June 1665, Braidy, Ibidem; and 5th February 1678, Mackenzie, voce Personal and Real. Answered, This brocard, that holographa non probant datam, holds as to heirs, that they are presumed to be on death-bed, unless it be proven they were read and seen before; but in matters of common business, letters are probative without the solemnities of witnesses, and are amongst the strongest of writs, as Stair observes, because most difficult to be imitated; and as such writs would not militate against a donatar of escheat, so neither can they against an arrester, a third party, however pregnant and probative they be against the party writer, betwixt him and the receiver, to whom it was directed. The Lords found it could not prove against the arrester, and so preferred my Lord Selkirk to the money. It was likewise alleged, That after Gray's assignation, Gavin, the cedent, received two years annualrent, which seemed to presume the assignation was not onerous; but the Lords abstracting from this, decided on the above mentioned grounds.

Fol. Dic. v. 1. p. 318. Fountainhall, v. 2. p. 456. *** This case was appealed:

The House of Lords ordered, that the judgment should be reversed.

See Journals of the House of Lords, v. 18. p. 660.