Scottish Court of Session Decisions

Subject_1 BILL OF EXCHANGE.
Subject_2 DIVISION II.

The Porteur's Action against the Person upon whom the Bill is Drawn.
Subject_3 SECT. II.

Extraordinary Privileges of Bills.

James Arbuthnot
v.
Pyper of Newgrange

Date: 17 June 1714
Case No. No 93.

Betwixt the drawer and indorser, where no onerous purchasers are concerned, all objections are relevant, hinc inde. See No 88. p. 1498.

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James Arbuthnot having charged Newgrange, upon his accepted bill, for 39 bolls of French salt, he suspends on this reason, That the salt bill was granted upon clearing all account betwixt the parties, and mutual general discharges given at the same time of all bills, bonds, tickets, &c.; yet, nevertheless Arbuthnot having Newgrange's accepted money bill for L. 347 Scots, which fell under the general discharge, he pretended that money bill was not in his hands, but promised faithfully to give it up next day: But, contrary to the faith of the mutual discharges and communing, he indorses that bill to a third party, for an onerous cause, and Newgrange, the suspender, was forced to pay it; but now he craves to retain the salt, until he get allowance or reimbursement of the money bill, falling under the general discharge cum omni causa.

It was answered: The reason of suspension is most relevant; but it is as false, and only probable scripto vel juramento; more especially the question being in the suspension of a bill, which, for the favour of commerce, ought to receive all ready execution.

It was replied: The charge being upon a salt bill, has not all the privilege of a money bill, but more especially, the question being betwixt the first creditor and acceptor; and the qualifications insisted on are not only relevant, but probable, by the witnesses to the mutual general discharges, and the communers, at the finishing their accounts; by whom it will be proven that this particular bill was communed upon to be comprehended in the mutual general discharges; and that the charger pretended he had it not upon him, but promised, and by oath, to give it up the next morning; all which could operate nothing against the third party to whom it was indorsed; but was most relevant against the granter of the discharge, who did indorse it; considering, that the charger being the original creditor in the money bill also, he does not pretend that there was the least intimation given to the suspender, that the said bill was indorsed; whereby the suspender had reason to believe that the charger was still his creditor, and thereby that he was exonered by the general discharge; especially considering, that the charger was very careful to indorse the salt bill likewise. But the suspender observing that he delayed to deliver the money bill, and hearing that he intended to indorse the salt bill, he sent express to his correspondent at Leith, to advise him of the matter, and to forbid him to comply with the salt bill; whereupon the person to whom the salt bill was indorsed, did return it to the charger; which letter, writ while the whole matter was recent, was produced.

‘The Lords allowed a probation by the witnesses in the mutual discharges, and such as should be proven to be communers, cum onere expensarum of the party that should succumb.’

Fol. Dic. v. 1. p. 98. Dalrymple, No 107. p. 150.