Scottish Court of Session Decisions

Subject_1 FOREIGN.
Subject_2 DIVISION VII.

Prescription, by the Law of which Country regulated.

Trustees of Thomas Renton
v.
Robert Baillie

Date: 7 July 1755
Case No. No 66.

The statute of limitations was not found to run in favour of a person who had removed to Scotland immediately after granting the note pursued on, and continued there.

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Sir Thomas Renton, a Scotsman, went to reside at London in the end of his life; and having large sums lying at interest in Scotland, he granted a factory to James Baillie writer to the signet to uplift his interests for him.

Baillie was occasionally at London in the year 1733, when he made up, along with Sir Thomas, an account of his intromissions, and of the payments he had made; at the foot of which account there was a docquet signed by them both, in which Baillie acknowledged himself debtor in the sum of L. 108: 16: 10 Sterling; and, of the same date, he granted a promissory note, payable in London a short time after to Sir Thomas for the said sum, bearing to be for the balance of accounts fitted betwixt them of that date.

Immediately after, Baillie returned to Scotland, and was never in England again, nor had he any further clearance of accounts with Sir Thomas.

In the year 1751, the Trustees of Thomas Renton, son and heir of Sir Thomas, pursued Robert Baillie, son and heir of James Baillie, for payment of the above promissory note.

Pleaded for Robert Baillie; As both the locus contractus and the locus solutionis was in London, the note falls to be regulated by the law of England; in which light, the six years prescription, contained in the English statute of limitations of the 21st James 1. cap. 16. is a bar to the action.

Pleaded for the Trustees; 1mo, As the note in question was granted for annualrents of sums uplifted by James Baillie, as factor for Sir Thomas Renton in Scotland, it was a Scots debt, and therefore ought to be regulated by the law of Scotland.

2do, If it fell to be regulated by the law of England, then, as James Baillie went out of England into Scotland immediately after granting the note, he falls under the exception contained in the act of the 4th of Queen Anne, cap. 16. § 19. importing, that the prescription shall not run in favour of a defender during the time he is beyond seas.

Answered for Robert Baillie; The exception in the act of the 4th of Queen Anne, relates to defenders gone beyond seas, but not to defenders gone into Scotland.

Replied for the Trustees; The exception contained in the act of the 4th of Queen Anne being an equitable provision, ought to have an equitable interpretation; in which view, it would fall to be extended equally to those retired into Scotland as to those gone abroad; for the only reason why prescription is refused to a defender beyond seas, is, that the creditor has not an opportunity of sueing him in England; but neither has he such opportunity when the defender retires into Scotland.

Such extension will be agreeable to the analogy of interpretation on the exception contained in this statute.

Jersey and Guernsey, in the letter of the exception, are beyond seas; but, in the interpretation of it, they are not. Prescription is still allowed in the law of England to run in favours of a debtor retired into either of these islands, though both are beyond seas; it is then the spirit, and not the letter of the statute, that is to be attended to.

‘The Lords found action lay on the note.’

Act. J. Dalrymple. Alt. Hamilton-Gordon. Clerk, Forbes. Fol. Dic. v. 3. p. 220. Fac. Col. No 156. p. 234.