Scottish Court of Session Decisions

Lord Advocate ( Gordon) and Scott, for him, pleaded that the document was not in re mercatoria; that its date was not probative, and therefore it could not be assumed as pars ejusdem negitii with the note; and that, that being so, there were no grounds for excepting the document from the ordinary rule that writs to receive effect must be either holograph or tested. The defender also pleaded that, in any view, he was not liable for the expenses concluded for, these having been incurred by the pursuer in defending himself in an action in which he was ultimately found wrong.

Solicitor-General and Adam in answer.

The following cases were quoted in the course of the argument:— Macandretw, 13 D. 1111; Hislop, 5 D. 507; Black, 2 S. 118; Crichton, M. 17047; Wallace, M. 17056; Edmontone, M. 17057; Walker, Hailes, 985; Wilson's Thomson on Bills, p. 2.

The Court to-day adhered to the Lord Ordinary's interlocutor, except as regards the expenses sued for, as to which their Lordships were equally divided, and which were thereupon given up by the counsel for the pursuer.

At advising—

Lord Cowan held that the acknowledgment and the entries in the books between them were good evidence of the pursuer's averment, and he agreed with the Lord Ordinary's conclusion on that ground, without finding it necessary to decide absolutely what would have been the effect of the acknowledgment if it had stood alone. His Lordship was, however, clear that the pursuer was not entitled to be relieved of the expenses sued for.

Lord Justice-Clerk, Lord Benholne, and Lord Neaves concurred in holding that the acknowledgment was per se sufficient. They held that it was properly in re mercatoria because the note was so; but, further, they thought that the statutes with reference to the authentication of writs had no application to a document which was merely used as evidence of a fact. These statutes were designed to secure that parties should not execute writings which created obligations otherwise than deliberately, and, to secure that, they provided in effect a power of resiling whenever the deed of obligation was not either holograph or tested. That was a principle which did not apply to a document which merely set forth a fact. A man did not need to deliberate about stating a matter of fact; and it was not material that a statement of fact might indirectly create an objection. The obligations contemplated by the statutes were obligations by which parties became directly bound, and which formed the substantive vincula upon which action could be raised. The fact was, that the question was just one of satisfactory evidence, and the effect to be given to a writ like the present depended just upon the value and effect which a judge or jury might be disposed to give to it in the circumstances of the case. Here there was no doubt about the genuineness of the signature, and there was certainly no presumption that the signature was not adhibited to the writing in the knowledge of its contents.

With regard to the question about the expenses, Lord Benholme could not presume, in the absence of information, that the litigation had been improper; and therefore was for adhering on this point also to the Lord Ordinary's interlocutor.

The Lord Justice-Clerk was inclined to take the same view, but desired some inquiry before deciding.

Lord Neaves agreed with Lord Cowan.

Their Lordships were unanimous in holding that the pursuer should get the whole expenses of the present process.