Scottish Court of Session Decisions

Subject_1 PROOF.
Subject_2 DIVISION V.

Proved, or not proved.
Subject_3 SECT. XIII.

Trust posterior to the Act 1696.

John M'Laren of Craigfield, and James Din,
v.
The Executors and Creditors of Major Chiesly

Date: 8 February 1710
Case No. No 656.

A person had been in use to draw bills in favour of his servant. One of these in the custody of the servant at his death, was, on account of the circumstances, found to be for behoof of his master.

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Major Chiesly having been in use to borrow money out of the bank, by drawing bills upon his debtors, in the ordinary stile of bank bills, payable to Robert Currie his domestic servant, whose name was only borrowed ad hunc effectum, that Currie might indorse them to the treasurer of the bank, for value to the Major; one of these bills drawn upon Sir Alexander Brand, (which in respect of his refusal to accept, could not be transacted in the bank, where no unaccepted bills are negociated,) being neglected by the Major as an useless paper in the hands of Currie, who died shortly thereafter, his Representatives got hold of it, and brushed it up as a true debt upon the Major's Representatives, in a multiplepoinding at their instance, against the Major's creditors.

Alleged for the Major's Representatives, No respect can be had to the bill, because Currie was the Major's servant at the date of it, and in constant use to uplift his money, and never indorsed the bill to any person in his lifetime; but on the contrary, when he made a disposition to his father of all his effects, made no mention of such a bill, though the particulars specified were of far less value; besides, it is ordinary in negociating bills in the bank, that the person to whom the money is payable in the bank, has no manner of interest in the bill, nor concern in the bank.

Answered, Currie being creditor in the bill, albeit he was the drawer's servant, a trust in his person can only be proved scripto vel juramento, conform to the act of Parliament 1696.

The Lords sustained the objection against the bill, and found, That it must be understood to have been drawn for the Major's own behoof, and that this case doth not fall under the act of Parliament 1696, anent trusts, and that Currie's Representatives had no more right to the bill, than they could have had to so much of the Major's money that had been found in Currie's hand.

Fol. Dic. v. 2. p. 272. Forbes, p. 395.