Scottish Court of Session Decisions

The suspenders, the Aberdeen Banking Company, on the 3d January, 1832, drew a bill, payable on the 16th, upon their correspondents in London, in favour of John Maberly and Company, a concern of which John Maberly was the sole partner, and which had a branch banking establishment in Aberdeen, but with their principal place of business in London. This bill was received in London by John Maberly and Company on the 6th, and, without being offered for acceptance, was indorsed by them, and delivered to one Bartley, a clerk in their banking-house, generally for the use of a concern called the Horse Bazaar, of which, as of the banking-house, John Maberly was the sole partner, and of which Bartley was the manager. Bartley thereafter indorsed the bill to the chargers, Maberly, Cane and Company, also of London, in payment of an account of less amount, due them by the Horse Bazaar, receiving from them a check on their bankers for the balance, which was applied in payment of certain other debts due by the bazaar. In the mean while, on the 2d of January, Maberly and Co. had stopped payment (though no commission of bankrupt was issued till the 28th), and Maberly, Cane and Co. were aware of the stoppage when they took the bill from Bartley. Owing to this stoppage two bills drawn by Maberly and Company, in favour of the Aberdeen Banking Company, in the preceding December, and which fell due on the 2d and 9th January respectively, were dishonoured and returned upon the bank, who thereby became the creditors of Maberly and Company, and whose correspondents in London in consequence refused to accept the draft by the bank in favour of Maberly and Company above-mentioned. On this, Maberly, Cane and Company, the holders of the draft, charged the bank, who brought a suspension, on the ground, that, in the circumstances, Maberly, Cane and Company were not entitled to the character of onerous indorsees. In this suspension an issue was sent to a jury, and of consent of parties a special verdict was taken, embodying the facts above detailed. On the motion to have it applied, Maberly, Cane and Company contended, that the bill being payable in London, and the whole transaction having taken place there, except the mere drawing of the bill, which could not in any way affect the question, the cause necessarily fell to be determined exclusively by the law of England. The bank, on the other hand, contended, that although the English law might properly be looked to as an authority, yet this being a question under the general law merchant, applicable equally to all countries, this Court should not bind itself absolutely in their determination of the cause by the rules of English law, as these might be given in evidence.

The Lord Ordinary pronounced this interlocutor, adding the subjoined note. ^*