Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat this week in the Outer-House, and so the observe are fewer.
John Wightman v. Marjory Moncur
Date: 11 February 1701
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Halcraig reported John Wightman, merchant in Edinburgh, against Marjory Moncur. It was a pursuit for 533 guilders 19 stivers, contained in an accepted bill, but protested for not payment.
Alleged,—That it was accepted causa data et non secuta, seeing the drawer was to have paid the value to a merchant in Rotterdam, for goods received from him; and, ita est, the drawer broke before the term of payment of the bill, without satisfying that factor; and so she cannot be liable.
Answered,—The bill is opponed, bearing for value received; which being, by her acceptance, acknowledged by her, she can never pretend now the cause of the bill not to have been implemented; and a bill bearing value received is a fungible, and like a bag of money, and no exception is competent against it.
Replied,—This were good among strangers; but this bill being made payable to the drawer's brother, the narrative can never prove inter conjunctos, but, by the Act of Parliament 1621, must be instructed aliunde.
Duplied,—The Act of Parliament takes no place in bills of exchange, which, for expedition of commerce, do, fictione juris, pass from hand to hand, like ready money, their currency being the life and foundation of trade.
The Lords considered that bills must not be fettered and clogged with municipal statutes, but must be regulated by the jus gentium et lex mercatoria received in the trading places of Europe; but thought, if it had borne only for value in account, they would have, in this case betwixt two brothers, caused him prove the onerous cause aliunde; at least to have given some probable evidences thereof, though not amounting to a full probation; as they did lately in the case of a bill of exchange, bearing for value to account, betwixt Wightman and Cuthbertson: But here, it bearing expressly value received, the Lords would put them to no farther proof for instruction of the onerous cause, unless they would convel and redargue the verity of that narrative by his oath. All the hazard is, Bankrupts, instead of granting bonds to their nearest relations, may now give them bills of exchange.
