Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 BILL OF EXCHANGE.
Subject_3 A bill bearing a stipulation for interest from the date, holograph of the acceptor, was sustained in a competition of creditors.

James Blair
v.
John Sword and Others, Creditors of Peter Rattray

Date: 23 June 1790

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[Faculty Collection, X. 280 Dictionary, 1433.]

Eskgrove. These bills are not probative by reason of the stipulation of interest. That stipulation changes the nature of bills; and as the solemnities of writing are absent,—necessary in writings which are not of the nature of bills,—the writings become not good. That the bill is holograph of the acceptor makes no difference in a question with creditors.

Justice-Clerk. The bills do, in effect, stipulate interest. Here there is a double stipulation, one for interest and another for principal. Pay L.200. and also L 10, would have been a good form of a bill. Homologation by payment is good against exceptions founded on the Act 1681.

Hailes. It has appeared after inquiry, that no fraud can be charged against this transaction. Had Rattray been alive and solvent, he could not have objected to this as a literarum obligatio, because the nullity was of his own making: he would have been barred by the exception of fraud. Shall his creditors be allowed to take advantage of a plea which he himself would not have been permitted to urge?

President. Decisions go far in setting aside, not only the stipulation of interest, but also the principal, on account of such stipulation; and I do not go back upon decisions. Exceptions ought to be made as to foreign bills of exchange, which frequently contain stipulations of interest: an exception might also be made as to merchants' bills or promissory notes. This is a holograph writing: if good against Rattray, it would be good against every one in his right.

Henderland. The decisions denying action, or bills bearing interest, were not founded on mercantile law. [If bills had continued merely as substitutes for the conveying money from place to place, those decisions would never have been pronounced, and, whenever bills resume their original nature, they will not be repeated. At present, every informal scrawl is dignified with the name of bills. We have seen legacies, marriage articles, cautionary obligations, and discharges from such obligations, constituted by what is called a bill; and I despair not of seeing indentures, and promises to marry, in the like form.]

On the 23d June 1790, “The Lords, in respect of the circumstances of the case, passed the bill of advocation;” altering the interlocutor of Lord Dreghorn.

Act. Wm. Honeyman. Alt. A. Wight.

Diss. Eskgrove, Swinton.

N. B. From the manner in which the case was treated, this may be considered as a decision in favour of Blair.