Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 FOREIGN.
Subject_3 Execution ordered for costs awarded by a foreign decree in terms of a foreign statute.

John Laycock
v.
Thomas Clark

Date: 22 July 1767

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[Faculty Collection, IV. 113; Dictionary, 4554.]

Hailes. The opinions of some of the foreign lawyers, quoted in the answers, carry the comitas to an extravagant length—but the defender seems to abridge the comitas too much. A foreign decree will be held just unless its injustice be shown. The defender is for introducing a sort of anti-comitas, and holds that the foreign decree must be held unjust until proof be brought of its justice; and what proof can the pursuer bring? Certainly none but the evidences who were examined at the trial in England. Now the defender, who requires this, has also asserted that the English witnesses cannot be compelled to appear, and that the Scotch witness, M'Bean, is not to be believed—so that his argument not only requires that the pursuer should instruct the justice of the decree, but also tends to show that he has not the means for instructing its justice. Further, the English court was a court chosen by the defender himself—and he must stand to its sentence. Had Laycock been cast, Clark would have received damages. When Clark is cast, it is reasonable that Laycock should receive expenses;—otherwise there would be an inequality and a hardship.

Monboddo. Clark was the provoker, and chose the forum. A contract entered into in a foreign country is effectual in this country. Here, by Clark being the pursuer, there is a tacit contract. The note subjoined to the decision by President Dalrymple is good law.

Pitfour. If a man is pursued in a foreign country, and a decree is obtained, the question is, how far will this avail in another country? The general solution is, that execution will go upon evidence of the justice of the cause. This is the case of a defender acquitted; and exceptio rei judicatæ is certainly binding. But the difficulty is as to the expenses given,—how far are they actionable in another country? I think there is no reasonable ground to doubt that they are. Clark chose the court. Can he object to its sentence? He brought his action before an English court—he knew that it was to be determined by the verdict of a jury, and he knew that that verdict was a sort of blind judgment—because there is no record of the proceedings in such cases. The authority of the statute of Henry VIII. awarding costs where the party is non-suited, is at least as good as the authority of the judge awarding costs ex proprio motu: so Clark cannot complain that the court was obliged to award costs. The statute is a wise one. Even in this country expenses are commonly given on an unsuccessful action for damages; but I doubt as to expenses in this court, on account of the judgment pronounced by this court in the case of Brunton.

Gardenston. This case clear upon the principle quodquisque juris.

Auchinleck. For adhering and for expenses. If this case were like that of Brunton, I should be clear against expenses; for the decree of the King's Bench was most iniquitous in that case. Here the decreet is just.

Coalston. For adhering, 1st, Because no iniquity is shown. 2dly, Because Clark choose his forum. 3d, Because we are to presume the decree just—as the defender did not follow the method allowed by the law of England—that of bringing the cause under review by a second trial: But I am clear against expenses. The defender, Clark, has erred in law, by supposing that Laycock was bound to show the equity of the decree. We have no evidence whether the decree was just or not. As to the case of Brunton, there was a special verdict, from which the decree appeared unjust. In all the former cases of this kind, either the justice or injustice of the decree appeared ex facie of the decree—but here no such justice or injustice appears.

Justice-Clerk. Here, we cannot conjecture whether the decreet is just or unjust: but our ratio decidendi is obvious—a suitor must subject himself to the law of the country where he voluntarily brings his action. In every action upon the case in England, when the pursuer is nonsuited, costs are awarded. The pursuer must have known this law, and he was bound, by his suit, to yield obedience to it. We see that the judges of the King's Bench have done nothing but what the law obliged them to do.

Kaimes. The rule of making a man liable where he chose his forum, was a good one while judges continued in the condition of arbiters—but not so now: there is neither contract, nor quasi contract, when a man institutes his action: the maxim on which this cause must be determined, is a more simple one. From the time of Mrs Prescot's case it is established in this country that, ex comitate, there is a presumption in favour of the foreign decree. The case of Brunton was different—there the decree appeared unjust ex facie of the verdict. At the same time I incline for no expenses.

Auchinleck. Here the decree just, as upon an Act of Parliament.

Alemore. The comitas goes so far as to presume justice. He who seeks to get free of the judgment, must prove injustice. The presumption and the verdict of the jury, which is the legal evidence, are in favour of Laycock. The fact is established by the verdict—the consequence is established by an Act of Parliament. Clark has said nothing against the decree, but tells a story—we can get a party to tell a story in every case.

President. I always thought the decree of the King's Bench in Brunton's case was a monstrous bad one, though I was employed as a lawyer to support it. A foreign decree must be held just until some proof is offered of its injustice. I see nothing against this decree. Suppose the case had gone to the House of Lords, the verdict would have been held good as unimpeached. It was competent to try the question of the invention before a jury, for the patent is periculo petentis—it is meant to hurt nobody, and in law it hurts nobody. I am hurt when I see a foreigner forced into a litigation in this Court.

The Lords adhered to Lord Kennet's interlocutor, and found expenses due.

No vote as to the principal point. As to expenses,

Diss. Strichen, Pitfour, Coalston. Non liquet,—Kaimes. Act. J. Dalrymple. Alt. A. Lockhart.