Keith v. Cairney [1917] ScotLR 335 (15 March 1917)

Keith v. Cairney [1917] ScotLR 335 (15 March 1917)

Summary diligence is not competent on a bond and disposition in security where the sum for which the bond is truly granted is not liquidated or definitely ascertainable from the bond itself, and the creditor has not proved the amount due; therefore, the charge must be suspended.

Citation
[1917] ScotLR 335
Parties
Complainer: Alexander Aberdein Keith; Respondent: Douglas Cairney
Jurisdiction
Scotland
Judgment Date
15 March 1917
Procedural Posture
Note of Suspension / Reclaiming Note (appeal) From Lord Ordinary's Interlocutor Suspending a Charge
Outcome
Charge suspended; interlocutor of Lord Ordinary affirmed; reclaiming note refused.
Legal Topics
Bond and Disposition in Security, Summary Diligence, Competency of Diligence, False Narrative in Security Instruments
Security Law Civil Procedure Bond and Disposition in Security Summary Diligence Competency of Diligence False Narrative in Security Instruments

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Parties

Alexander Aberdein Keith

Complainer

Douglas Cairney

Respondent

Procedural Posture

Note of Suspension / Reclaiming Note (appeal) From Lord Ordinary's Interlocutor Suspending a Charge

Legal Issues

  1. 1 Whether summary diligence is competent on a bond and disposition in security that does not truly express the transaction between the parties
  2. 2 Whether the creditor must prove the amount of the balance for which the bond was truly granted when the bond's narrative is false

Ratio Decidendi

Summary diligence is not competent on a bond and disposition in security where the sum for which the bond is truly granted is not liquidated or definitely ascertainable from the bond itself, and the creditor has not proved the amount due; therefore, the charge must be suspended.

Court Disposition

Charge suspended; interlocutor of Lord Ordinary affirmed; reclaiming note refused.

Orders

  • Suspension of the charge as craved
  • Interlocutor of Lord Ordinary adhered to