Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
George Wilson of Sands v. George Mackenzie
Date: 27 June 1711
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Wilson against Mackenzie. Alexander Deuchar needing some money, and resolving to try the bank, he prevails with George Mackenzie, in August 1709, to draw a bill on him, payable to John Campbell, Deuchar's servant, for £60 sterling; which being presented to the bank, it seems they did not think the drawer's nor acceptor's security sufficient, and therefore refused the money. This made Deuchar to deal with George Wilson of Sands, to accept the bill conjunctly and severally with him, on which he gets the money; but the bank having protested the bill against Sands, he is forced to pay the money, and gets the treasurer's discharge on the back of the bill; and then raises a process against Mackenzie the drawer for repayment of the money to him.
Alleged,—I drew no bill upon you, but only upon Alexander Deuchar; and if the bank refused to honour it, Deuchar ought to have returned my bill, and put me in my own place again; and could not, with any honesty or fairness, apply to Wilson, to join with him in the acceptance without my knowledge or consent: whereas I never employed Wilson to join his credit to get the money from the bank: and Wilson was too rash to accept unless he had first consulted me; and if he did it to gratify Deuchar, and follow his faith, to him he must go for relief, seeing it is positively offered to be proven that Wilson's name is superadded in the direction, and when I signed the bill there was none named but Deuchar; and that it was so presented to the bank singly with his name, and was refused, till a few days after it was brought back again with Wilson's name, and then Deuchar got the money. And to evince that Wilson relied on Deuchar, he took an heritable bond for his relief, and is thereupon in-feft in his lands of Comry; and therefore he can never have regress against Mackenzie the drawer.
Answered for Wilson,—That, by the very nature and conception of the bill, Mackenzie the drawer must be liable to repay him, because the bill has this clause, that he had the value in his own hands, ergo he was debtor in the sum; which Mr Forbes, in his Tractate on Bills, page 53, thinks sufficient to afford the payer recourse against the drawer. And as for the direction, it must be presumed to have been ab initio as it now stands, unless you improve it; the subscription to the bill serving for both, and it not being customary to sign the direction. Next, the bill being designed as a fund for credit to Deuchar, whatever he did to make it effectual, by procuring Sands to concur with him in the acceptance, must bind the drawer who trusted him with negotiating of the bill. And you, the drawer, have no imaginable prejudice; for what if Deuchar had got the money at the first presenting, before Wilson or Sands accepted, you would have been liable to refund: or if Campbell had indorsed it to Wilson, and he had paid it, would not that have made Mackenzie the drawer effectually liable to repay it? What if he had accepted for the honour of the drawer? would that have evited the recourse, seeing I have voluntarily paid for you, et utiliter negotium tuam gessi, and so cannot, without ingratitude, be refused repetition? And his taking a bond of relief from Deuchar no more weakens his recourse against the drawer than a co-cautioner's taking a separate security from his conjunct cautioner can be construed a passing from the relief competent to him against the principal debtor; and on Mackenzie's paying him he is willing to assign him to Deuchar's security.
The Lords repelled Mackenzie's defence, in respect of the answer, and found him liable in repetition to Sands of the sum in the bill he has paid out for him to the bank.
