Subject_1 BILL OF EXCHANGE. Subject_2 DIVISION IV.
Possessor's recourse against the Drawer and Indorser.
Subject_3 SECT. I.
Whether value presumed given, by the Person who holds the Bill.
Alexander Scot, Writer in Edinburgh, v. Walter Laing, Servant to the Duchess of Buccleugh
Date: 19 March 1707 Case No. No 117.
Value presumed to have been given to the drawer of a bill, by the party in whose favour it is drawn, though it bear not value received.
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Walter Laing being pursued by Alexander Scot, upon his promise to pay to the pursuer a bill of L. 30 Sterling, drawn by Colin Ramsay upon, and accepted by, John Melvill,
Alleged for the defender: That he could not be liable to the pursuer for the bill; because, it doth not bear value received of him, and so was but a factory, or trust given by Ramsay to Scot to receive the money. For instructing that a bill, not bearing value received, imports only a trust in the person it is payable to, to receive the money for the drawer's behoof; a declaration under the hands of some Edinburgh merchants was produced, bearing. That when they draw bills payable to their servants, or any whom they trust to uplift their money, they have no other security for the repayment or check upon the trustee to count, save, that the bills do not bear value received. So that if the trustee should prove unfaithful, or should die before sending any letter of advice to the drawer or indorser, that he received their money, the trust could not be safely proved but by the want of value received in the bills.
Answered for the pursuer: We need not go, for a decision in this matter, to the precarious authority of merchants, who are divided in their sentiments; seeing the Lords, proceeding upon a more sure rule, viz. The principles of law, and the opinion of authors, have once and again solemnly determined, that bills not bearing expressly value received of the creditor, do imply that value was given for them, unless redargued by the creditor's oath or writ; as Mr Forbes observes, in his Treatise concerning Bills of Exchange, p. 49. 59. The pretence that merchants could not easily fix a trust upon their servants, or correspondents, to whom they make their bills payable for their own behoof, unless it were presumed from the want of the words, ‘Value received,’ is frivolous: For if the trustee be honest and exact, he will immediately, upon receipt of the drawer's money, give him credit in his books, whereby the trust will be known whether he die or live; and if the servant or correspondent do not answer the trust reposed in them, the drawer or indorser has himself to blame for giving credit to such. Again, is it any extraordinary thing to see merchants and others deposite their money, without any receipt, in a confident's hand, to lie there till the owners have occasion to make use of it, or draw it out with advantage? Do not many rich men in the country transmit their money to their agents at Edinburgh, to be lent out as a term upon security: And what have the owners of such money to depend on, but the oath and honesty of their doers? Besides, our law has privileged bills of exchange as to the way and manner of proving trust: Witness the act 1696 anent blank writs, in which bills are excepted. 2do, If value were not presumed, though not expressed, many people might be insnared, who, by not knowing that formality, might neglect to cause insert value received in bills truly onerous. 3tio, The defender having promised payment of the accepted bill to the pursuer, it is jus tertii to him to object trust in the person of the pursuer, without instructing that he is creditor to, or represents Colin Ramsay the drawer. Vide Forbes, p. 83. (edition 1703.)
The Lords found, that value is presumed to have been given for the bill by Alexander Scot the creditor, though it bear not value received; unless the defender prove, by writ or oath of the creditor, that he paid no value.
