Scottish Court of Session Decisions

Lord Skerrington—“In this case the pursuer sues both as an individual and also as executor-nominate of a Miss M'Kirdy, who died on 10th April 1908, and he seeks to recover from the defender payment, in the first place, of a sum of £100 which he alleges was due to him as an individual by the deceased Miss M'Kirdy. The ground on which he maintains that the defender is liable is that she was the mortis causa disponee of the deceased's heritable estate. The pursuer alleges that the moveable estate was insufficient to pay his debt, and he maintains that the defender is accordingly liable to him to the extent to which she was lucrata by the succession. Various questions were discussed at the debate, but I think it now appears that the first question which ought to be determined is whether the pursuer is in a position to show that he was a creditor of the deceased Miss M'Kirdy by production of an IOU signed by her, and which is No. 15 of process. This IOU bears no address and no date, and it is not alleged that any money was paid by the pursuer to Miss M'Kirdy in return for it. The pursuer's case as presented in the argument was that the IOU was holograph and therefore binding per se, and that it was delivered to him by Miss M'Kirdy in the year 1888 for the purpose of vouching previous advances made by him to her. The defender pleads that, assuming this document to be holograph, it is struck at by the Statute 1669, cap. 9, and that the pursuer can make no use of it as a document of debt unless he begins by proving its genuineness by the oath of the defender. The Act in question seems to be perfectly decisive; it enacts that ‘holograph missive letters and holograph bonds and subscriptions in compt books without witnesses not being pursued within twenty years shall prescrive in all time thereafter, except the pursuer offer to prove by the defender's oath the verity of the said holograph bonds and letters and subscriptions in compt books.’ It has been decided that the expression ‘holograph bonds’ applies to informal documents such as the one under consideration. In these circumstances, as it is common ground that this IOU has not been pursued for within twenty years from the date when it was delivered, it seems plain upon the terms of the statute that the pursuer must prove the verity ( i.e., genuineness) of the IOU by the oath of the defender. If it had not been for the Act the pursuer could have proved that fact by parole testimony, but the Act says that in the circumstances that are before us the proof shall be limited to the oath of the defender. The answer which the pursuer's counsel made to this argument was that he was prepared to prove that subsequent to the delivery of the IOU in 1888 its genuineness had been acknowledged by Miss M'Kirdy, in respect that she had paid various sums of interest to him, and in support of that statement the pursuer produced four receipts for interest dated between 15th May 1889 and 13th November 1891. The defender's counsel maintained that these receipts did not instruct in a competent manner that interest had been paid upon the debt in the IOU, because they made no reference to the IOU, and he argued that it was incompetent to connect these receipts with the IOU by a proof at large. I reserve my opinion upon that question, because I think the case may be disposed of upon the assumption that these four payments were payments of interest upon the sum in the IOU. Assuming that to be the case, there is great force in the argument that payment of interest was by implication an acknowledgment by the debtor of the verity of the IOU, and that she having made that acknowledgment by the very fact of paying interest, it was unnecessary for the creditor to establish the verity of the IOU either in the ordinary manner by parole, if that were competent, or in the special manner pointed out by the Act of Parliament, viz., the defender's oath. In support of that argument the learned counsel referred to a passage in Professor More's Notes to Stair, vol. i, p. cclxxi, which goes very far to support the view that the Act of 1669, c. 9, ought to be construed equitably, and that equipollents for the ‘pursuit’ required by the statute ought to be admitted by the Court. Professor More goes so far as to say that ‘it is generally agreed that to keep alive a holograph bond or other deed it is not necessary that any action or diligence should be raised upon it within the twenty years, provided it has all along been acted upon and recognised as a binding obligation by the payment of interest or otherwise.’ He gives no authority for that view, and I can find no justification for it in the Act of Parliament. He then states another question, which he says has never been determined, viz., ‘Whether, if interest should be paid upon a holograph bond for a few years and should then stop, the prescription would run under the statute from the last of such payments or from the date of the bond, or whether any such payment or recognition of the bond by the debtor would take it entirely out of the statute?’ The question raised by Professor More is the very question we have to consider in this case. He suggests three alternative answers. The one is that the payment of interest subsequent to the date of the holograph writing should elide altogether the application of the Act. The second alternative is that the terminus a quo of the twenty years should be postponed to the date of the last payment of interest. Either of these solutions would suit the case of the pursuer, as the last payment of interest took place within twenty years of the raising of the action. But then Professor More suggests a third alternative, which to my mind is the most satisfactory, viz., that notwithstanding any such payments of interest the statute must still take effect according to its terms, and that if twenty years have run from the date of the holograph writing,

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