A Copy of the Late Lord Chief Justice Pollexfen's Opinion, which he gave Mr. Richard Murray, in the Year 1686, when he opposed the Reading of the Scotch Decree in the Court of Chancery in Ireland, as being no Evidence to be admitted.
TITLES to Lands in Ireland, ought to be tryed by the Laws of Ireland, and not by the Civil-Law, or Laws of Scotland, or any other Countrey, and to admit the Judicature of any other Kingdom to have a Right to try Titles to Lands in Ireland, is to the Disinherison of the King and his Crown of Ireland, and of the Subjects of Ireland of their Birth-right.
Though Crimes committed in Scotland, or other Foreign Kingdom, should not be punishable by the Laws of England or Ireland, though by a Subject of England or Ireland committed; but be punishable in Scotland, or such Foreign Kingdom, by the Laws of that Kingdom, if a Sentence or Judgment be given in such Cause in any Foreign Kingdom, that Sentence, except in Maritime Cases, shall have no Effect in England or Ireland; it shall not attaint the Blood, or cause any Forfeiture or Disability, suppose it be for Murther, or Felony, or the like.
The Laws of England and Ireland admit of divers sorts of Tryals in particular Cases, as by Certificate of Marshall, Mayor of Burdeaux, and many other in particular Cases, mentioned in Abbot of Strat Marchellocr, Cap. Rep. 9.31, 32. but never admitted Mens Estates to be tried by Laws or Judicatures of other Countries; no Book or Case, I suppose, ever admitted such a Tryal: Therefore if this had been a Sentence or Decree in Scotland, in a Criminal Proceeding, for Forging these Deeds there, that Sentence or Proceeding ought to have no Effect here.
If in a Tryal of Forgery, upon an Indictment or Information, a Deed be found Forged, it shall be damned, this Tryal is conclusive, and while that Verdict or Judgment stands, no other Court ought to suffer that Deed to be insisted on as a true Deed, it hath had its legal Tryal.
But this Proceeding in Scotland is not Criminal, for then there would have been some Fine or Punishment inflicted, besides destroying the Deed, upon the Offender, none is mentioned.
There is no Case (except only whereupon Indictment or Information of Forgery) wherein any Proceeding on any Deed or Will is declared Forged, the Parties shall at Law be thereby debarred from using it.
Suppose a Deed in Chancery, Court of Request, formerly, or in the Ecclesiastical Court, or a Will concerning Lands and Goods, shall be Decreed or pronounced against, as aforesaid, the Party Entitled to any Land by such Deeds or Will, shall not thereby be debarred, but have his Tryal Per Pares, by the Law of the Land; and in such Tryal, such Decree is no Evidence; so that if as much Authority or Credit should be given to this Scottish Proceeding, as to any Proceeding in any Court, not Proceeding according to the Common Law, it can neither be a Bar, nor admitted as Legal Evidence, the Reasons are evident.
Every Country hath its Municipal Laws, Rules and Methods, but different one from another; the Subject of each Country hath their Estates and Properties by their Respective Laws; their own, not other Laws, are their Rules; to make the Laws of one Country interpose and take place in another, must break and confound the Laws and Rules of that Country. This Case, of their Law in Scotland concerning Forgery, is a sufficient Instance, for if by the Law there, a Deed that hath not the Place where made, Witnesses in the Body of the Deed be to be taken as Forged; 'tis no Wonder, that though the Deeds in question, made according to the Laws of Ireland, be there condemned as Forged; but it is then most plain, he that hath an undoubted Title by the Law of Ireland, shall lose his [...] because his Deeds not made according to the Law of Scotland; so that I think the Sentence is to have no Effect as to Evidence, or otherwise to effect the Title to a Free-hold in Ireland.