Seton: 1683

References: (1683) M 2566
Ratio: The defender was a widow, charged on a bond granted by her husband. She said that the pursuer had owed her husband freight under a charterparty. The pursuer argued that the debt was not liquid, because the defender would need to prove that her husband had made the voyages. At first instance, the court upheld that objection. The defender offered to remit the matter to the pursuer’s oath. The court then allowed the matter to be proved prout de jure (by any means permitted by law) – referring again to the quod mox liquidari brocard. The court decerned for the sum in the bond, but superseded extract for three or four months, so ‘that if the debt be liquidate betwixt and that time, then the compensation was to be received.’
The court granted decree for the debt in the bond, but directed that it was not to be enforceable for three or four months, to give the defender time to establish the claim for freight, which could then be set off against the debt under the bond. The reporter thought that this went too far ‘and though it be materially just, yet it is a great relaxation of our ancient form.’
Jurisdiction: Scotland
This case is cited by:

  • Cited – Inveresk Plc v Tullis Russell Papermakers Ltd SC (SC, SC Summ, Bailii, [2010] UKSC 19, Bailii Summary, 2010 SCLR 396, 2010 GWD 23-437, 2010 SLT 941)
    The parties had undertaken the sale of a business (from I to TR) with part of the consideration to be payable on later calculation of the turnover. The agreement provided for an audit if the parties failed to agree. TR issued a figure. I argued that . .

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Last Update: 15 June 2020
Ref: 410713