ASCERTAIN- COUNTRY. to payment of interest, which could not have been made by the laws of this country as they then stood, the stipulations have been allowed. effect when there was no suspicion of an attempt to evade our laws.1 In Campbell's case, a summons raised in Scotland for payment of a debt contracted in South Carolina, concluded for payment of the debt, 'with the lawful interest,' which was held to mean 7 per cent., being the rate current on similar debts in South Carolina, as shown by the opinions of counsel produced in the cause. On the other hand, if, by the lex loci, the debt is one on which no interest is allowed, as in England in the case of a book debt, effect will equally be given here to such law.2 And where a lady had in an antenuptial contract of marriage, entered into with a Scotchman abroad, but in foreign form, accepted a jointure in lieu of every right she might have over the funds of her husband, she was held to have thereby validly renounced all right of terce or aliment out of her husband's estate in Scotland.3 Questions of law arising upon deeds executed out of Scotland, and which are to be construed according to the law of the place where such deeds are made, required formerly to be solved by obtaining the opinion of counsel of the country where the deed was executed, and as to foreign countries, the rule remains the same. But, as to Her Majesty's dominions, the Act of 1859, to afford facilities for the more certain 'ascertainment of the law administered in one part of Her Majesty's 'dominions, when pleaded in the Courts of another part thereof,' makes provision for obtaining the opinion on such questions of law from one of the Superior Courts in the part of the Queen's dominions the law of which it is desired to ascertain. This is done by submitting a case adjusted at the sight of the Judges of the Court where the cause is depending, to the Judges of the Superior Court in that part of the Queen's dominions the law of which is to be ascertained, for their opinion; which opinion, when obtained, forms the rule in reference to the point to which it relates. The decision given by the Court, which seeks the opinion of another Court, in terms of such opinion, is subject to review, as far as the judgment of the Court by which the opinion is given is so. And it must be truly a point of law, proper to the foreign country, that is resolved in this manner. If the interpretation is not dependent upon the foreign law, or upon its technical rules, but is to be dealt with according to the plain construction of the 1 Campbell v. Ramsay, 15 Feb. 1809, F. C. See also Wilkinson v. Monies, 28 June 1821, 1 Sh. 90. 2 Gillow and Co. v. Burgess, 21 May 1824, 3 Sh. 45. 3 Countess of Findlater v. Earl of Seafield, 8 Feb. 1814, F. C. 4 22 & 23 Vict. c. 63. a Except in the case of a foreign state with which a convention has been entered into for the purpose of ascertaining the law of such state, in terms of 24 & 25 Vict. c. 11. words, the Judge of any Court is entitled and bound to give his judgment according to his own understanding of the words used. The construction in such a case is not matter of foreign law, and the Court here is not bound by the opinion of the foreign lawyer on the question of construction,1 1 Thomson's Trustees v. Alexander, 18 Dec. 1851, 14 D. 217. WRITINGS in re mercatoria. CHAPTER IV. WE now proceed to the case of writings in re mercatoria, which form a large and very important class of privileged writs. Professor Bell' describes these as 'bills, promissory-notes, and checks 'on bankers; orders for goods, mandates and procurations, guarantees, 'offers and acceptances to sell or to buy wares and merchandise; or to transport them from place to place; and, in general, all the variety ' of engagements or mandates or acknowledgments which the infinite 'occasions of trade may require.' The Court of Session classed among these the banker's entry in a bank pass-book; holding that the bank pass-book was not the copy of the account kept in the bank books, but that each entry, by the banker, of money paid in, was a separate complete receipt for such money. But the House of Lords altered, and remitted the case for further consideration; holding that the pass-book was not proof, but only prima facie evidence, liable to be rebutted; and the object of their remit was to take proof, prout de jure, in opposition to the pass-book. Missive letters, engaging to join in a bill, given as security for rent, are in re mercatorid, and entitled to be held privileged writings. So also is a letter of guarantee of an account, for past as well as future furnishings. The main question tried in Paterson's case was—whether the guarantee was privileged so far as granted for past furnishings. The Court found that it was so. But a missive, in order to have the benefit of the privileges, must be in re mercatoria: an obligation of relief from payment of an ordinary bond is not privileged. Neither is a simple acknowledgment that the granter owes the grantee a sum of money borrowed.? Fitted accounts among merchants are amongst privileged writings; also fitted accounts generally, when applicable to mercantile 1 Bell's Commentaries, i. 325. 2 Rhind v. Commercial Bank, 24 Feb. 1857, 19 D. 519. 3 10 Feb. 1860, 32 Scot. Jurist, 283; 3 Macq. App. 643. 4 Henderson v. Murray, 5 Dec. 1765, M. 16,986. Paterson v. Wright, 31 Jan. 1810, F. C.; affirmed 4 July 1814, 6 Paton's Crichton v. Syme, 21 July 1772, M. 17,047. 7 Hamilton's Executors v. Struthers, 2 Dec. 1858, 21 D. 51. 8 Lesly v. Millers, 27 Jan. 1714, M. 16,978. in re mer matters. In the case of Campbell,' an attempt was made to open up a WRITINGS general discharge of all claims, following on a long correspondence, and catoriâ. in consideration of a sum of money paid,-in respect, inter alia, that the discharge was not duly authenticated. The attempt was unsuccessful; but, except when the transaction is very clearly in re mercatoria, the discharge on a compromise, or settlement of claims, ought to be authenticated as an ordinary deed. The privileges of writings in re mercatorid, as regards their authentication are-(1.) That although not holograph, witnesses are not required to prove their authenticity; (2.) That witnesses are not required, as in holograph deeds, to prove the date; (3.) That even subscription 'by initials, or by a mere mark, provided it be proved or admitted to be genuine, and to be the accustomed mode of the person transacting 'business, is sufficient;'" and the privileges have been conceded on account of the 'necessary rapidity of the operations of trade, the con'fidential methods of transacting business which are necessary or ' unavoidable, and the circumstance that they often regulate transactions 'between subjects of different states, among whom the peculiarities of municipal law cannot be admitted." TENANTS. The last class of privileged writings which we shall refer to is that RECEIPTS TO of receipts to tenants for rent. These, by the usage of Scotland, need only to be subscribed by the landlord, or some one duly authorised by him, let the sum be ever so considerable.3 In Boyd's case such receipts were sustained, in respect of the custom, and by reason of the great and exuberant confidence betwixt landlords and tenants. AUTHENTICA A short reference may here not be out of place to cases in which SPECIAL STATUspecial forms of authentication have been sanctioned by Acts of Parlia- TORY FORMS OF ment; indeed the particular documents, or classes of documents, falling TION. under such Acts, may be regarded as thereby privileged in regard to the mode of execution. 6 ESTATES ACT. Thus by the Crown Private Estates Act,' passed in 1862, All CROWN PRIVATE 'dispositions, conveyances, deeds of appointment, commissions, powers ' of attorney, wills, deeds of settlement, and other deeds or instruments 'to be made or granted by Her Majesty, her heirs or successors, of or relating to the private estates of Her Majesty, her heirs or successors, 'situate or arising in Scotland, shall be valid and effectual, although not 'executed according to the forms of the law of Scotland, if the same 'shall be under the sign manual, attested by two or more witnesses: And every such disposition or conveyance, if granted mortis causâ, shall 'be valid and effectual, whether the same shall be under the sign manual as aforesaid or shall be signed by some other person in the presence of the granter, and by his or her direction, in the presence of two or more |