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.
Gavin Plumber v. Archibald Houston
Date: 13 February 1706 Case No. No 88.
Betwixt the the drawer and acceptor themselves where onerous purchasers are not concerned, all objections are relevant hinc inde, as in other contracts.
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James Houston draws a bill on Archibald his brother for L. 22 Sterling, payable to Gavin Plumber. Archibald accepts the bill; but afterwards failing in payment, it is protested against him, and being registrated, he is charged thereon; who suspends, on this reason, That though the ground of the charge be an accepted bill, yet he offered to prove, by the charger's oath, that the true cause of it was the price of the fourth part of a ship sold by the said Gavin to him; and that when he came to take possession of the same, he was debarred by bottomries contracted upon it before the sale; and so Mr Plumber can never crave the price till he deliver the thing sold, that being causa data causa non secuta. Answered, Whatever be the cause of the bill, there can be no inquiry after acceptance, such bills being as current as lying money beside a merchant or factor; and to admit such allegeances would be such an interruption and destruction to trade, that it would confound all commerce; and that, by the laws anent bills, no exception, though it were compensation, is admitted against their currency. Answered, This may hold as to foreign bills, but this is an inland bill; and though the act of Parliament 1695 communicates to them the privilege of summary charging, yet it would be mighty inconvenient to allow them all its other privileges, seeing much debt is now transacted by bills, without any relation to trade. The Lords observing the bill did not bear value received, the question arose, whether that was virtually implied therein, though not mentioned? It was contended, such bills were no more than mandates in rem suam. On the contrary, it was alleged, That, by the constant track of decisions, bills, though wanting that, yet consequentially imported them to be onerous; as was found in the case of Meikison against Graham, and Freebairn against Guidsire*, observed by Mr Forbes, on Bills of Exchange, p. 49. § 14. † unless the party prove scripto vel juramento, that value was not received for it, neither in money nor goods. The Lords thought it might be a stop to the currency of bills, if they were once made over and indorsed to strangers or third parties, to offer to prove their cause; but here it is betwixt the first creditor in the bill and the acceptor, and against him it seemed relevant to prove its cause by his oath; and therefore they ordained Gavin Plumber to depone, if it was for the vendition of the fourth part of a ship; and that being acknowledged, then allowed him to prove he was debarred by preferable debts affecting the same. It were desirable, that this point were so regulate by an act of Parliament, that no exception whatsoever be receiveable against bills, except falsehood and payment only. See No 93. p. 1505.
Fol. Dic. v. 1. p. 98. Fountainhall, v. 2. p. 327.*** Forbes reports the same case:
Archibald Houston being charged at the instance of Gavin Plummer, for payment of an accepted bill drawn upon him by his brother Mr James, payable to the charger; he suspended, upon this reason, That he offered to prove, by the charger's oath, that the bill was granted in payment of the fourth part of a ship sold by him to the drawer, which sale is not made effectual by reason of prior bottomries affecting the ship, and therefore the charger cannot seek payment of the bill.
The Lords thought the allowing to prove the exception of causa data non secuta, against a stranger or third party, to whom a bill is indorsed, might prove a stop to the necessary course of bills. But the question here being betwixt the first creditor in the bill, and the acceptor, they found it relevant for the suspender to prove the cause of it by the charger's oath: And he acknowledging that it was granted for the vendition of the fourth part of a ship; allowed the suspender to prove he was debarred by preferable debts affecting the same.
