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Scottish Court of Session Decisions >>
Mr John Kennedy of Kilhenzie, v Captain Hugh Arbuthnot of London. [1725] Mor 1477 (8 July 1725)
URL: http://www.bailii.org/scot/cases/ScotCS/1725/Mor0401477-069.html Cite as:
[1725] Mor 1477
Mr John Kennedy of Kilhenzie, v. Captain Hugh Arbuthnot of London
Date: 8 July 1725 Case No. No 69.
An accepted bill found to prove its date against the acceptor's heirs.
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Mr Kennedy raised a process against Captain Arbuthnot, as heir to Kennedy of Baltersan, for payment of three bills accepted by Baltersan, to which he had right.
It was offered, in defence, for Mr Arbuthnot—That he being an heir, the bills did not prove their dates against him; but were presumed to have been granted on death-bed, in the same manner as holograph writs; and, therefore, he was not liable, unless the pursuer could instruct, that the bills were accepted when Baltersan was in liege poustie, or sixty days before his death:—And the defender argued, That, by express statutes, all writs of importance should bear writer's name and witnesses; otherwise they should be void; and that such kind of obligements ought not to afford action against an heir, unless it could be proved, that they were owned by the acceptor, and seen before he was on death-bed; which appeared evident from the parallel of holograph writs, which have no effect against an heir, unless they are proved holograph; and, of a date, before the granter came on death-bed: That there was greater opportunity to improve a holograph writ than a bill, which, for ordinary, has no other attestation, but the simple signing of the debtor's name.
To all which it was answered: That an accepted bill was a complete writ, in suo genere, as much as a bond duly subscribed with witnesses attesting. By the act 20, Parl. 3. Charles II. the date of a bill is probative, to make annualrent due thereon, even with respect to third parties; and no reason can be given, why the date of a bill should be probative in one case, and not in another: That if bills do not prove their dates, they, by the same argument, can prove nothing at all: That there was no manner of analogy betwixt bills and holograph writs; for holograph writs prescribe in twenty years, by express statute; but, Sir George Mackenzie observes, upon that act, that the Parliament absolutely refused to limit bills to that time. Holograph writs prove not their dates against any third party; and, if bills were no better than holograph writs, with regard to their, dates, they could not compete with an assignee, or an inhibiter; nor in many other cases; which would be altogether absurd; and was never before pleaded; In fine, If bills did not prove their dates, they would be rendered ineffectual, and of no use in commerce.
The Lords found, That accepted bills prove their dates against the acceptor's heirs. See This case by Lord Kames, voce Proof.
Reporter, Lord Royston.Act. Arch. Stewart, jun.Alt. Ja. Boswell.Clerk, Hall.
Edgar, p. 185.
