Scottish Court of Session Decisions

The estates of Hardie being sequestrated, be effected a composition-contract with his creditors in December, 1831, and George Fraser, and James John Fraser, W. S., bound themselves as cautioners for the composition, and for the expenses of the sequestration. Ker and Inglis, writers in Greenock, having been employed under the sequestration, indorsed their account, amounting to £66, to James Stuart, S.S.C., who, on 28th May, 1833, wrote to Fraser, asking a settlement. After several intermediate applications, Stuart wrote on 28th October, enclosing a copy of the account, and threatening compulsory measures, unless it was immediately paid. He offered, however, to take Fraser's bill at two or three months, so as to enable Fraser, in the mean time, to recover from Hardie and his friends. On 4th November, Fraser answered that he had written to Greenock, and would communicate with Stuart on getting a reply. On the 18th, Stuart insisted on an immediate and positive answer to his application for payment, and he again offered to take Fraser's note. On 24th December, he threatened an action, unless he obtained Fraser's note. As Fraser did not give his bill, Stuart raised an action against Hardie, and George Fraser, and John James Fraser, for payment of the account. John James Fraser, after getting a week's delay in calling the summons, with a view to a settlement, took out the summons and account to see, and returned them without defences. Stuart then obtained decree in absence, without having had the account previously taxed. Diligence was done against Hardie and George Fraser; after which a charge of horning was given to John James Fraser, for the debt and expenses, now amounting to £89, 18s. On 21st May, 1834, Stuart sent a state of the debt, and offered to take Fraser's acceptance at a month's date. The state, as sent, charged interest until the period when such acceptance should become due. Fraser granted his hill, but failed to retire it when it became due. Stuart raised diligence on the bill, and gave a charge for payment, upon which Fraser paid £50 to account. After delaying for some time as to the balance, Stuart was about to proceed with his diligence, when Fraser presented a bill of suspension, and pleaded. The debt for which decree was taken was a writer's account, assigned to Stuart, and that account had never been taxed. The suspender had a right to have the account submitted to taxation, before diligence could proceed. This was clear, from Act of Sederunt, 6th February, 1806, which directed no decree to be pronounced even in absence, without taxing; and the right had been recognised by several decisions of the Court, ¹ in which the granting of bills, or making partial payments, were held not to cut it off.

The suspender answered: The decree for the account of £66 was not brought under suspension, as it was not charged on; neither could it be suspended, as it was fully implemented by Fraser's having granted his bill for the contents, and afterwards paid £50 to account of the bill. The tenor of the correspondence of the parties showed that, at granting the bill charged on, a transaction bad been entered into, and the suspender was barred, by personal exception, from opening it up; especially, as the whole contents of the bill were contained in a decree which was not under suspension. The Act of Sederunt did not apply to a case in the circumstances of this one, or to any account incurred to a country writer, And, in the decisions referred to by the suspender, there had never been a final settlement, as at the close of the account, but only interim or partial settlements during its currency, which necessarily implied the right of taxation of the whole account, at its close. ² As the suspender was himself a practitioner, both aware of the right of taxation, and competent to judge of the account when rendered, he was especially liable to the plea of personal exception, in attempting to rescind his own settlement.

The Lord Ordinary (Mackenzie) refused the bill, with expenses. A second bill was appointed by the Lord Ordinary (Jeffrey), “to be answered ^* upon the application of the Act of Sederunt, and cases quoted,