Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 This week I sat in the Outer-House, and so the observes are the fewer.
William Wightman v. Thomas Johnston
Date: 18 January 1700
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The Lords advised the cause, William Wightman, merchant in Edinburgh, against Thomas Johnston, skipper in Queensferry. The case was somewhat new. Johnston, being in Holland, buys a ship from Archibald Wightman, who gives Archibald a bill for £6000 Scots, as the price of it, on his wife, who accepts the same. Archibald transfers and indorses the bill to be payable to William Wightman, merchant, his uncle; and, shortly after that, breaking, his creditors in Holland, particularly the carpenters, smiths, sailmakers, and ropers, who had built and outreiked the ship, arrest and seize on it, by virtue of the hypothec given them by the Dutch law, till they be paid for their furnishing. Johnston seeing the ship will certainly be evicted from him, and being charged on his bill, on the Act of Parliament 1681, summarily, he suspends, on this reason, That he offered to prove, by the letters of advice and invoice sent alongst with the bill, that it was a part of the price of the ship; and the same being arrested, it was ob causant datam causa non secutâ; and therefore he could not pay the bill till the ship were cleared of its debts and delivered to him; otherwise, this were bis idem exigere, to exact the price, and yet he not to get the ship; and, in mutual contracts, both parties must perform, ere they can require implement from the other. 2do. This has been a plain trick betwixt an uncle and nephew, in defraud of Johnston, a lawful creditor; and so, by the Act of Parliament 1621, he must instruct the onerous cause; especially seeing the indorsation does not bear value received, but value as per account.
Answered,—Whatever exceptions are receivable against bonds and other grounds of debt, the same are never admitted against bills of exchange; else commerce betwixt this and foreign nations should be stopped, and money circulation marred: for, at the beginning, all was done by permutation and barter of goods; and, for obviating the difficulty occurring in excambions, money, as the standard of goods, was invented: But inconvenience and danger arising in carrying it, the Italians introduced banks and bills of exchange; which should be as current as the delivery of a bag of money from hand to hand, and should, fictione brevis manus, be reputed as present money, and payable latori presentium, without any more inquiry. And the charger is not concerned what was the cause of the bill, unless it had expressly bore it. And declarations or back-bonds apart can neither qualify nor affect bills, whatever they may operate against other writs, else all trade will soon be ruined, and strangers will no more trust us: and, by the law of nations, and the French edict of Versailles, no exceptions, though of compensation, are receivable against bills of exchange. And the Act of Parliament 1621 relates only to bonds, contracts, and other such writs, but not to bills of exchange.
The Lords thought declarations apart not sufficient to stop the currency and execution on bills; yet that fraud and dole was a just exception against all bargains; and therefore, before answer, ordained the letters of advice, and all others relating to this bill, to be produced: And found, That, being a conjunct person, and the bill's indorsation only mentioning value per account, he ought to instruct the onerous cause of transferring the bill to him, especially his nephew bankrupting so soon after. And, though there were no diligence against him at the time, according to the Scots form, because he was then in Holland, yet, according to their custom, he was placaded and had fled; and each nation had their several ways,—as the Romans, missio bonorum in possessionem, and by the annotatio bonorum, and the like.
