him in Scotland: this assignment, though it transfer not the jus crediti to the assignee, is, however, an order upon the debtor to pay to the assignee. But such assignment, even though the first in order of time, will not avail against a more formal assignment taken bona fide, and regularly intimated to the debtor. An equitable title may be good against the granter; but can never be sustained in a competition with a legal title, where both parties are in pari casu. I conclude this section with applying to debts what is observed with respect to moveables in the section immediately foregoing. The nomination of an executor in a testament, is an universal title which ought to be sustained every where; and is always sustained in the Court of Session to oblige debtors in this country to make payment.* But an executordative, with letters of administration, hath not a title to sue for payment extra territorium. And the same is the case of a guardian to a lunatic's estate named in England by the Chancellor: he has no title to sue for payment of the lunatic's debts in Scotland,† SECT. V. Foreign Evidence. UNDER this head come properly foreign writs; because no writ, where there is wanting any solemnity of the law of Scotland, can be effectual here to any purpose but as evidence merely. And as, among civilized nations, the solemnities required to make a * Durie, Feb. 1627, Lawson contra Kello. + June 21, 1749, Morison, &c, contra Earl of Sutherland. writ effectual, are such as give sufficient evidence of will, it is established as a rule with us, That contracts, bonds, dispositions, and other writs, executed according to the law of the place, are probative in this country. Thus, action is always sustained upon a foreign bond having the formalities of the place where it was granted:* and an extract of a bond from Bourdeaux, subscribed by the tabellion only, and bearing, that the bond itself, subscribed by the granter, was inserted in his register, was sustained, being secundum consuetudinem loci.† Depositions of witnesses taken abroad upon a commission from the Court of Session, were sustained here, though subscribed by the commissioners and clerk only, not by the witnesses, such being the form in the country where the depositions were taken.‡ The same rule obtains even though the foreign bond bear a clause for registering in Scotland. This circumstance shows, indeed, that the creditor had it in view to make his claim effectual in Scotland; but it weakens not the evidence of the bond, which, therefore, will be a good instruction of the claim.§ By the law of England, payment of money may be proved by witnesses; and, therefore, the same proof will be admitted here with respect to payment said to be made in England. For our act of sederunt confining the evidence to writ,|| regards no payment but what is made in Scotland; and it would be un Haddington, Jan. 19, 1610, Fortune contra Shewan. + Home, Feb. 1682, Davidson contra Town of Edinburgh. Fountainhall, March 19, 1707, Cummin contra Kennedy: § Home, Feb. 14, 1721, Junquet la Pine contra Creditors of Lord Sempill. Historical Law-tracts, tract 2. just to deprive a man of that evidence which the law of his own country made him rely on. Accordingly, in every suit here upon an English bond, the defence of payment alleged made in England, is admitted to be proved by witnesses.* Yet, where a bond granted in England contained a clause for registering in Scotland, the defence of payment made in England was not permitted to be proved by witnesses. This appears to me a wrong judgment; for, as observed above, the clause of registration imported only, that the creditor had it in view to make his debt effectual in Scotland. It certainly did not bar the debtor from making payment in England; nor, consequently, from proving by witnesses that payment had been so made. In Scotland, the cedent's oath is not good evidence against the assignee; because it is the oath, not of a party, but of a single witness. In England, an assignment being only a procuratory in rem suam, the cedent's oath is an oath of party, and, therefore, good evidence against the assignee. For that reason, an English bond being assigned in England, and a suit for payment being raised here by the assignee, a relevant defence against payment was admitted to be proved by the oath of the cedent.‡ Durie, Nov. 16, 1626, Galbraith contra Cuningham. + Stair, Dec. 8, 1664, Scot contra Henderson. SECT. VI. Effect of a statute, of a decree, of a judicial conveyance, or legal execution, extra territorium. THOUGH a statute, as observed above, hath no authority as such extra territorium, it becomes however necessary upon many occasions to lay weight upon foreign statutes, in order to fulfil the rules of justice. Many examples occur of indirect effects given thus to foreign statutes. One of these effects I shall mention at present for the sake of illustration; reserving others to be handled where particular statutes are taken under consideration. Obedience is due to the laws of our country, and disobedience is a moral wrong.* This moral wrong ought to weigh with judges in every country; because it is an act of injustice to support any moral wrong, by making it the foundation either of an action or of an exception, I give for an example the statute prohibiting any member of a court of law to buy land about which there is a process depending.† Such a purchase being made notwithstanding, the purchaser follows the vender into a foreign country, in order to compel him, by a process, to make the bargain effectual. A bargain unlawful where made, becomes not lawful by change of place; and, therefore, the foreign judge ought not to support such unlawful bargain by sustaining action upon it. Courts were instituted to repress, * See suprà, p. 307, 308. † 13. Edward I, cap. 49; Act 216, parl. 1594. not enforce, wrong; and the judge who enforces any unlawful paction, becomes accessory to the wrong. Several questions arise from the different prescriptions established in different countries. In our decisions upon that head, the case is commonly stated as if the question were, Whether a foreign prescription, or that of our own country, ought to be the rule? This never ought to be made a question; for our own prescription must be the rule in every case that falls under it, and not the prescription of any other country. The question handled in these decisions is, What effect ought to be given to a foreign prescription in cases that fall not under any of our own prescriptions? Questions of that sort may sometimes be nice and doubtful. By the English act of limitations,* *All actions of account and upon the case, "all actions of debt grounded upon any lending or "contract without speciality, all actions of debt for 66 66 arrearages of rent, &c. shall be sued within six years after the cause of action." The purpose of this statute is to guard against a second demand for payment of temporary debts, such as generally are paid regularly and to make that purpose effectual, action is denied upon such debts after six years. As statutes have no coercive authority extra territorium, this statute can have effect with us, but to infer a presumption of payment from the six years' delay of bringing an action. And, accordingly, when a process is brought in Scotland for payment of an English debt after the English prescription has taken place, it cannot be pleaded here, that the action is cut off by the statute of limitations: but it can be pleaded here, and will be sustained, that the debt is pre* 21. James I, cap. 16, § 3. |