Scottish Court of Session Decisions

The Lord Ordinary ( Ormidale) refused the note of suspension with expenses.

The complainer reclaimed.

Shand for reclaimer.

Solicitor-General ( Millar) and Adam, for respondent, were not called on.

At advising—

Lord President—I do not know what your Lordships' view of this case may be, but it appears to me very clear that this is not a liquid document of debt. This document, which is signed by the respondent, the charger, is as follows ( reads). It is clear that this is not a liquid document of debt, for there is no creditor, and then when you find a creditor set up by this assignation indorsed in the document, that raises a number of considerations which leave me in no surprise that it should be the subject of an action. It might raise some very delicate questions. It has been made the subject of an action in the Sheriff-court of Fife, and that action has been in dependence for two years. It is impossible to assent to the contention of this complainer that this is a liquid document of debt on which compensation may be pleaded either before or after sentence. And this matter is complicated by it being a plea after sentence. My simple ground of judgment is, that this is not a liquid document.

Lord Curriehill concurred in holding that this was not a liquid document of debt, as it neither contained the name of a creditor nor an averment of date.

Lord Deas—I have some difficulty in saying absolutely that this is not a liquid document of debt. It is quite true that the document itself is not, but we must take the probative assignation too, which makes it payable to the lady. Taking these two together, there is nothing to prevent this from being a liquid document, provided it is admitted to be holograph, but the vagueness as to the term of payment. I don't know that this in itself is sufficient to support your Lordships' views. But supposing that matter got over, every liquid document of debt cannot be pleaded in this way against a charge on a bill under decree. Questions may have arisen as to that liquid document, which may prevent it from being used in that summary way. It is impossible to look at the facts without seeing that very important questions have arisen as to whether this document can be enforced; and if we did not know enough to see that, it would be clear that there has been an action to enforce it. And when we see that there has been a litigation for two years, is it possible to say that it is within the category of liquid documents as to which there is no dispute? There may be other serious questions raised. There has been great delay in enforcing this document, and though we were told that the reason for the delay did not appear, I think if we look at the facts we may easily see how it might be expedient not to push on the matter. My only difficulty is as to which, out of so many grounds, our judgment should rest.

Lord Ardmillan thought that this could not be called a liquid document of debt, and therefore concurred with their Lordships. If this had been a proper bill of exchange, he thought there would be some difficulty in holding that it was too late for the complainer to state the plea.