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Andrew Cheap, Brother to James Cheap of Rossie, v James Arnot of Woodmill. [1712] Mor 1537 (18 July 1712)
URL: http://www.bailii.org/scot/cases/ScotCS/1712/Mor0401537-119.html Cite as:
[1712] Mor 1537
Subject_1 BILL OF EXCHANGE. Subject_2 DIVISION IV.
Possessor's recourse against the Drawer and Indorser.
Subject_3 SECT. I.
Whether value presumed given, by the Person who holds the Bill.
Andrew Cheap, Brother to James Cheap of Rossie, v. James Arnot of Woodmill
Date: 18 July 1712 Case No. No 119.
A bill drawn payable to a creditor, not bearing value received of him, understood to be in satisfaction pro tanto of the debt, and not that the creditor gave present value for it.
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Andrew Cheap having charged Woodmill to make payment of L. 253: 12s. Scots, with annualrent and penalty, contained in his bond 11th November 1608; and of L. 100, with annualrent and penalty, contained in his other bond, dated 27th April 1709: He suspended, upon this ground, That the charger having received payment of L. 20 Sterling, by a bill drawn by the suspender, 26th February 1709, upon David Harden of Aberuthen, payable to the charger, conform to his receipt on the back of the bill; that L. 20 Sterling must be imputed in solutum pro tanto of the sums charged for, seeing the bill doth not bear value received.
Alleged for the charger: Value being presumed to be received in all bills, though not bearing value; present value is presumed to have been given in this case. Because, 1mo, That is to be presumed, which is most ordinary, L. 114. ff. de R. J. And the ordinary way of dealing in bills is by delivering present value in money or goods. And men of business, when they draw bills payable to their creditors, take receipts of the sums in the bills in part of payment of the debts owing by the drawers; or qualify the bills, so that the persons drawn upon, shall take such receipts from the possessors: For that otherways, the drawer of the bill should have no security for the sum in the bill, nor instruction that the debt was paid. It would mar commerce, and prove a snare to merchants and others, knowing no such distinction of bills bearing value, and those not bearing value, if the latter should be interpreted in satisfaction of anterior debts.
Answered for the suspender: It is indeed ordinary to give present value for bills, and value received is implied betwixt persons no otherways concerned together but by that single bill: But, in the present case, the suspender being debtor ab ante to the charger, and giving a bill not bearing value received, the presumption of present value given ceaseth. The charger would not agree to give the suspender a receipt in part of payment: Because he had a mind to be fully secured, and knew not if the bill would be accepted and paid.
The Lords found the sum in the bill founded on by the suspender to be imputable in payment of the bond prior to the date of the bill; unless the charger prove, by the suspender's oath, That the bill was granted for another cause.
