Scottish Court of Session Decisions

In April, 1835, the complainer Beattie presented a bill of suspension of a charge at the instance of Tweedie, for a sum of £2000, contained in a bill of exchange. Appearance was entered for Tweedie, but no answers were lodged. The bill was passed in June, 1835, without caution or consignation, and the letters of suspension were duly expede on 22d June. The process was thereafter allowed to lie over.

Towards the end of 1837, Tweedie being now deceased, the respondent Stodart, his representative, charged and incarcerated Beattie upon the bill above-mentioned. Thereupon Beattie presented a bill of suspension and liberation, stating, inter alia, the passing of the previous bill of suspension and expeding of the letters. The Lord Ordinary “passed the bill without caution or consignation, granting warrant in the meantime for the liberation of the suspender.” ^*

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* “ Note.—Had the Lord Ordinary had nothing to guide him in this case, but the information contained in the bill, he certainly would have hesitated much in passing this bill, as the pleas urged in the suspension, at least the grounds upon which they are enforced, appear to him to be insufficient and untenable.

“But the Lord Ordinary was much struck with the statement, that a bill of suspension as to the very bill now charged on, was passed without caution or consignation in 1835, and the letters as expede on that bill are produced, dated 22d June, 1835.

“Now, it would appear that the Act of Sederunt, 8th July, 1831, ¹ §3, places such suspensions, even though not executed, in the situation of sleeping processes; and if so, though they may require wakening when they lie over for year and day, or transference when either of the parties dies,—yet they are depending processes.

“That Act of Sederunt is not referred to in the bill; but though it be not, it must receive effect; neither will it be sufficient to say that the suspension depended chiefly on an error in the form of diligence used in 1835; for the 4th reason of suspension proceeded specially on the ground, that the bill charged on ‘was a mere renewal of the original bill, on account of which the complainer granted the bond for £4000,'—that this bond satisfied the bill,—and ‘that the charger is not entitled to enforce payment of the present bill from the complainer,—but, on the contrary, is bound to deliver up the same unconditionally to the complainer.

“If that be a plea in a depending suspension, surely the charger was not entitled to proceed with new diligence on the same bill till the suspension was taken out of the way; but, as the Lord Ordinary reads the Act of Sederunt of 1831, there is a material distinction between summonses and letters of suspension. The former, if not executed and called within year and day, fall in toto; but letters of suspension, though unexecuted, only fall asleep; and consequently no new diligence can be raised, till the suspension, then previously in dependence, is discussed.”

¹ Ante, IX. 903,

Stodart reclaimed.