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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> The City of Glasgow Life Assurance Co. v. Stiven and Myer [1868] ScotLR 5_556 (29 May 1868) URL: http://www.bailii.org/scot/cases/ScotCS/1868/05SLR0556.html Cite as: [1868] SLR 5_556, [1868] ScotLR 5_556 |
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Page: 556↓
Held that a document, bearing to be an office copy of a judgment pronounced for debt against an English debtor by one of the superior courts of England, and appearing to be stamped on each page with the seal thereof, was, if authentic, prima facie evidence of the constitution of the debt, and sufficient to entitle the creditor to obtain from the Commissary confirmation as executor creditor of the debtor; and proof of authentication allowed.
Page: 557↓
In a multiplepoinding raised in the name of the City of Glasgow Life Assurance Company, Stiven and Myer competed for the contents of a policy of insurance for £1000, effected by the deceased Joshua Tattan with the Assurance Company upon his own life.
Stiven produced a decree of confirmation of the Commissary of Edinburgh, confirming him as executor qua creditor to the defunct. The policy of insurance was given up in the inventory. The Commissary's decree proceeded upon a petition, which set forth that Stiven was a creditor of the defunct to the amount of £422, “contained in and due by a judgment of the Court of Exchequer of Pleas in England,” to which money, “together with the said judgment, the petitioner has now right by deed of assignment in his favour .… conform to office-copy of the said judgment, duly stamped with the seal of the said Court.”
Stiven pleaded:— In virtue of his confirmation as executor-creditor, proceeding upon the said judgment of the Court of Exchequer, which is, by the law of England and of Scotland, a liquid document of debt, the claimant William Stiven is entitled to be ranked and preferred to the whole sums payable under the said policy for £1000.
Myer pleaded:—The confirmation founded on by the claimant and real raiser, William Stiven, being inept and insufficient as a title to the contents of the policy claimed by the present claimant, in respect that the debt on which it bears to proceed was not constituted in Scotland, the said William Stiven cannot complete with the present claimant in regard to that part of the fund in medio.
The Lord Ordinary (
His Lordship added the following note: —
“The claim of Mr William Stiven to the proceeds of the policy for £1000 on the life of Joshua Tattan is mainly rested on an alleged confirmation as executor-creditor of Mr Tattan.
It is trite law, that to entitle a creditor to carry through such a confirmation he must produce a document constituting his alleged debt, or else must take the proceedings (including a constitution of the debt) prescribed by the Act 1695, c. 41. Mr Stiven, in his proceedings for confirmation, produced neither bond, bill, nor decree of a Scottish court. What he produced was the document No. 52 of process, which is described as an office-copy of a judgment recovered in the Court of Exchequer in England. This may, for aught the Lord Ordinary knows, be sufficient evidence in England of a judgment such as alleged; but the document is not such as, without further evidence to support it, a Scottish court can recognise. It is expressed in what is a strange tongue in the courts of this country. It contains no decree such as a Scottish court is in use to grant. It has no attestation by clerk, registrar, or notary, certifying it to be what is alleged. Its whole validity is said to depend on a stamp put on each sheet, which may be proved to mean something, but without proof means nothing at all, or only affords a variety of in conclusive guesses.
The Lord Ordinary cannot sustain the document as of itself, and without corroborative evidence, sufficient to constitute a debt. A foreign judgment at best requires proof of its authenticity and effect. The books exhibit cases in which even judgments of prima facie genuineness were found deficient in authentication— ( Robertson v. Gordon, 15th November 1814, Fac. Coll). The test of the inadequacy of the document is found in the obvious circumstance that the Lord Ordinary could not even now recognise it as a valid judgment without proof being led in support of it. But this circumstance is conclusive to show that it is a document on which confirmation could not pass, for the document necessary for that purpose must be one which, on its face, and without extrinsic evidence, constitutes a debt in the eyes of a Scottish court. The case would of course have been altogether different had the claimant obtained a decree-conform from the Scottish court,—a course which is of common occurrence where the object is to prosecute Scottish diligence, such as the confirmation as executor-creditor in substance is.
Mr Stiven founded largely on the circumstance that he produces an ex facie valid confirmation, standing at present unreduced. But in a process of competition, such as a multiplepoinding is, the rival claimants are entitled to investigate the correctness of each other's title or diligence exactly as in a reduction.”
Stiven reclaimed.
Clark and Balfour, for him, argued:—To obtain confirmation as executor qua creditor, some decree or writing is necessary; but it need not be a document on which diligence can follow. A bill is sufficient, though not protested; therefore, a decree-conform is not necessary, the only use of which is to obtain execution in Scotland of the decree of a foreign court. The Lord Ordinary rests his judgment on the ground that he could not recognise this as a valid judgement without some further proof in support of it. But it is doubtful whether any deed will of itself identify the grantee with the deceased. Every liquid document is examinable. But such questions are excluded from the Commissary's consideration. There was prima facie evidence upon which he was bound to proceed.
Solicitor-General and Cheyne, for Myer, answered:—The creditor requires to instruct his debt, and there is no evidence that this is a proper decree. It has no signature, no certificate of a notary-public that the seal is the seal of court, or that the writing is a true copy. The language is unintelligible. But for the Statute 14 and 15 Vict., c. 99, such a decree would not be receivable as evidence in another court of England, and that Statute does not apply to Scotland. Evidence in support of the document should have been led before the Commissary.
The following authorities were quoted:—
Stair, 3, 8, 63; Ersk., 3, 9, 35; Bell's Comm. 2, 85; Sinclair v. Frazer, July 14, 1868, M. 4532; Frizel v. Thomson, June 9, 1860, 20 D. 1176; Whitehead v. Thomson, March 20, 1861, 23 D. 772; Gill v. Anderson, April 16, 1858, 3 Macq., 180; Southgate v. Montgomery, February 9, 1837, 15 S. 507.
Stair 1, 18, 6; Ersk 3, 4, 16; Bell's Comm. 1, 734; Taylor on Evid. (4th ed.) 2, 1298; Dickson, Evid., Sect. 1284; Alexander's Pract., 94; Whitehead v. Thompson, ut sup.
At Advising—
Page: 558↓
The Lord Ordinary, however, has found that “the confirmation was irregularly expede, being founded on a document insufficient to constitute the alleged debt;” and he explains in his note that he considers it not such a document as, “without further evidence to support it, a Scottish Court can recognise.” Now, I entertain no doubt that the document was one which the Commissary was bound to look at and consider as evidence, into the validity and sufficiency of which he might have inquired had any opposition been made. And now that the validity of the document is questioned in this Court, I see no difficulty in that inquiry still being made.
There are two questions to be considered—1. Whether the document produced be sufficient evidence that such a judgment was obtained in the English Court? 2. If so, whether, upon the judgment, the Commissary was warranted in granting executry-dative? If the objection to the authenticity of the document is insisted in, there must be inquiry before the first question can be answered. In the face of the express averments of Stiven (Cond. 2) that this is a properly authenticated copy of a judgment of the Court of Exchequer of Pleas, I think the Lord Ordinary has fallen into error in holding that all inquiry into the truth of these averments must be excluded. I think that inquiry is competent; and further, that if it be shown that this copy of a judgment would be receivable as evidence in England, and that it is in truth, as it is alleged to be, a good extract of the English judgment, as we would call it, under the official seal of the Court, then, ex comitate gentium, it is equally so here (vide Southgate v. Montgomery, 15 S. 904). The judgment itself, on its merits, may be examinable, and be only prima facie evidence of the debt. That is a different matter.
As to the second question, production of a decree of a Scotch Court, obtained against the debtor himself, is sufficient to prove the constitution of a debt, and to entitle the creditor to confirmation as executor-dative qua creditor. The Act 1695 does not apply to a party who has obtained such a judgment during the lifetime of the deceased; but only to his creditors who have failed to do so. and to creditors of his next of kin who desire to attach the estate to which their debtor has become entitled. Now, on the same principle, if this document be proved to be good evidence of the judgment of the Exchequer of Pleas, which would be received as such in the Courts of England, I think the Commissary was entitled and bound to look upon it as proof of a constituted debt, as much as a decree of the Court of Session—no objection having been stated to the debt thereby constituted. The Commissary's decree only enables the party to reach the estate of his debtor by the diligence of the law. The diligence does not attach the debtor's person; and all that is required is a title sufficient to attach estate in Scotland. Its effect on the merits in this competition is a different matter.
The case of the Marchioness of Hastings, 14 D. 489, fixed this important principle, that the Commissary is bound to regard letters of administration obtained by next of kin to a domiciled Englishman; and to grant confirmation to the mother of the defunct producing such letters, although not his next of kin by the law of Scotland. In that case the Commissary had refused to confirm, there being no precedent for such a course, but this Court remitted to grant confirmation as prayed for. I do not see why a creditor, who has got a judgment of an English Court constituting his debt against his debtor, should not obtain from the Commissary, on very much the same principles, that confirmation as English creditor, without which he cannot attach his debtor's effects situated in Scotland.
The proceeding as to executry-dative resembles adjudication in so far that, though constitution is required, it need not be such constitution as would warrant diligence against the person. For example, a holograph writing is a sufficient basis for either. It is certainly a good constitution of a debt till it is impeached. It carries a presumption of genuineness, yet it does not prove itself if it be impeached.
In this case Stiven produces a judgment obtained against his debtor (who was domiciled in England) during his lifetime, in the form of an alleged English
Page: 559↓
Why then should an English decree in proper form not be a sufficient basis for this diligence of confirmation? It would be unreasonable to disregard it. The creditor could do no more than constitute his debt against an English debtor in an English Court, and when driven to resort to confirmation here by the accident of there being funds due by a Scotch debtor, every facility should be given for such a supplementary proceeding.
The party may of course object to the evidence or authenticity of the judgment if he pleases; but to exclude this decree altogether would be a strong proceeding, tending to treat our English neighbours as outer barbarians. We should be placing ourselves beyond the pale of that courteous intercourse which should subsist between civilised countries, and especially between this Court and an English Court in the same island, and subject to the same sovereign.
Lord Justice-Clerk—I entirely concur with your Lordships. I think that the Lord Ordinary's finding is not very logically connected with the views expressed in his note. Assuming that the document before us is an English judgment in a form in which it would be received as evidence in the English Courts, it seems to be to me clear that it is a sufficient constitution of the debt. A party who has obtained a judgment of a competent court against his debtor, which liquidates the debt, has done all that can well be required to constitute that debt. It is surely constituted by a judgment so obtained; and it would be unjust to require him to constitute it of new in Scotland against the unrepresented estate of his deceased debtor. I agree with your Lord ships that a document may be a sufficient basis of confirmation, though not in a form in which the creditor could at once obtain execution.
It is a different question whether this document would, in point of fact, be received in the English Courts as instructing a judgment of the Exchequer Court of Pleas, and, if that is disputed, we must have inquiry. Assuming that that inquiry results in its being ascertained that any English court would receive this document as evidence of a judgment, I cannot go into the view that the Commissary was not entitled, without taking proof as to its authenticity, to grant confirmation to Mr Stiven Prima facie and presumably, the document was a good decree. It bears a seal of a Supreme Court, it purports to be an office copy of a judgment, and it contains a very formal narrative of judicial proceedings terminating in a judgment founded on a verdict. The case of the English penal bond, referred to by some of your Lordships, which has been held a sufficient basis for an adjudication, is, in my opinion, directly in point, for in adjudications a liquid document of debt or a decree is required, and a penal bond is not probative per se in Scotland.
The Court, on 7th February 1868, pronounced this interlocutor:—“Recall the said interlocutor: Find that the document No. 52 of process, purporting to be an office-copy of a judgment of the English Exchequer Court of Pleas, to the effect set forth therein, was, if authentic, prima facie evidence of the constitution of the debt alleged to be now due to claimant Stiven, and was thus a liquid document of debt, on which the Commissary was entitled and bound to proceed in the confirmation for which he applied as executor-creditor of the deceased Joshua Tattan; but, in respect that the authenticity of the document is denied on record, continue the cause till Tuesday next, that parties may be heard as to the proper mode of ascertaining this disputed matter; reserving all questions of expenses.”
Thereafter, the parties having agreed to take the opinion of English counsel as to the effect of the document, the Court pronounced the follow interlocutor:—“Approve of the case for the opinion of English counsel, as adjusted by the parties; and, of consent of both parties, appoint the said case, No. 63 of process, with the document therein referred to, being No. 52 of process, to be laid before Mr George Mellish, Q.C., for his opinion thereon; and appoint case and opinion, when obtained, to be lodged in process quam primum.”
Mr Mellish's opinion was to the effect that, except in the same court and in the same cause, the document would not be receivable unless either certified by the keeper of the original record to be a true copy, or sworn to as correct by a witness who had compared it with the original.
To-day the Court, on the analogy of the course which had been followed in reduction of services, held that the executor might still supply the necessary proof of authentication.
Solicitors: Agent for Stiven— James Webster, S.S.C.
Agents for Myer— Stuart & Cheyne, W.S.
