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.

Bruce of Kinnaird,
v.
Guthrie & Hutchison

Date: 6 December 1748
Case No. No 101.

A purchaser accepted bills blank in the drawer's name, for the price of lands. They were effectual in the hands of an onerous indorsee; although the purchaser had objections against the validity of the disposition of the lands.

Click here to view a pdf copy of this documet : PDF Copy

Hamilton of Pencaitland, and Glen of Longcrofts, tacksmen of the estates of Linlithgow and Callander, obtained from Bailie Bowie in Falkirk, their factor thereon, a disposition to his lands of Barns, and other subjects, in satisfaction of his arrears of intromissions.

The Earl and Countess of Kilmarnock, for whom the tacksmen were trustees, sold the lands of Barns to Eupham Hutchison, relict of David Miln, merchant in Edinburgh, and Henry Guthrie, writer there, for the agreed price of 6000 merks Scots; and they accepted two bills, one for 4,500 merks, payable at Whitsunday 1745; and the other for 1500 merks at Martinmas thereafter; and deposited them in the hand of Mr James Graham of Airth; who, by his missive, promised to procure them a disposition from the Earl and Countess; upon delivery of which, he was to give up the bills to David Bruce of Kinnaird.

The disposition was executed and delivered; and thereupon Mr Graham retired his letter, and delivered up the bills to Mr Bruce, to which he adhibited his subscription as drawer; having, as the value thereof, discharged a debt due to him by the Earl and Countess.

The acceptors paid the first bill; but suspended the second, on account of this defect in their progress; that there was no disposition from the trustees to the Earl and Countess, although the disposition to them, narrated the delivery of an extract of one; whereby they did not doubt, as they said, but that it was on record, and an extract would be given them; and, therefore, they gave up Mr Graham's letter; but now it appeared that no such paper could be found registered; and they offered, if the charger would shew in what register it was, to pass from their suspension, and take an extract.

The Lord Ordinary, 16th February 1748, “Found, that there was sufficient evidence, that the bill pursued on, was granted for part of the price of the lands purchased by the suspenders; and that they had right to retain the sum in the said bill, until the disposition to the Earl and Countess of Kilmarnock were delivered to them.”

Pleaded in a reclaiming bill: The charger having discharged a debt due to him as the value of the bills, is to be considered as an indorsee for an onerous cause, and not liable to any objection which might have been competent against the indorser. 2dly, Without insisting on this privilege, but supposing a bond had been deposited, to be given up to him, on condition of a disposition being delivered to the granter; he was in bona fide to take up the bond, and thereon discharge his own debt, on seeing the condition implemented, as it really was, and Mr Graham's letter retired.

Answered: The charger cannot plead the privileges of an onerous indersee, as the bill was not drawn by the Earl and indorsed; but the draught being blank, he adhibited his subscription: And, regarding him as an assignee, or as having right to a bond, on the condition of the depositation being implemented, it is plain it was not: An obligation to deliver a disposition to land for an adequate price, especially in a letter which is shortly conceived, necessarily implying an obligation to give a progress.

The Lords founds, That the purchasers could not retain the money for which the bill charged on was granted.

Act. D. Grame. Alt. A. Murray. Fol. Dic. v. 3. p. 80. D. Falconer, v. 2. No 18. p. 20.