William King, Merchant in Glasgow, v. Robert Esdale, Merchant in Dumfries
Date: 6 December 1711 Case No. No 3.
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In the suspension of a charge at the instance of William King against Robert Esdale, for payment of L. 25 Sterling, and interest thereof, which Robert Esdale, by his note, 2d December 1709, promised to pay upon the first of May then next, to William King, or order for value received; the Lords found, That the English statute of 3. and 4. A. c. 9. giving the like remedy upon promissory notes, as is now used upon bills of exchange, for the space of three years, though made perpetual by the 7. A. c. 25. an act of the British Parliament since the Union, doth not extend to promissory notes in Scotland; because the British statute doth only make the former, which before was a temporary law of England, to be a perpetual law thereof; and the British statute being but an accessory, can go no farther than the statute of England, it was calculated to continue.
Fol. Dic. v. 2. p. 211. Forbes, p. 552.*** Fountainhall reports this case:
1711. December 7.—Robert Esdale, merchant in Dumfries, gives a promissory note to William King, in these terms; ‘I promise to pay to William King, or his order, L. 25 Sterling, with interest, value received per me,’ dated in December 1709. When this fell due, King protests for not payment, and registrates as if it were a bill of exchange, and gives him a summary charge of horning. Esdale suspends, and his first grounds was, that the summary charge was most unwarrantable; for, 1mo, It bore no clause of registration; nor, 2do, has it the privilege of a bill, which by express statute, has summary execution; for this has nothing resembling the form of a bill, which must have a drawer and an accepter; but here is neither, but a simple obligatio mutui, like a bond, where no summary charge can pass without the debtor's consent to registration: And if this were sustained, then all the useful caution invented by our law to prevent or discover falsehood would fall to the ground, for there needed no writer nor witnesses; the presumption against holograph writs, and the presumption that they were done tempore inhabili would evanish; for though these cannot be pleaded against bills of exchange quæ reguntur jure gentium, yet these privileges can never be extended to promissory notes; for then bonds might claim the same, being upon the matter nothing else but promissory notes in a more extended stile. Answered for King the charger, That the form of bills of exchange varies according to the various customs of nations, and this at least has the essentials of a bill; for it is made payable to the creditor, or his order and bears value received, and is betwixt two merchants in re mercatoria; and in a late case betwixt Bundy, a London citizen, and Kennedy of Culzean, No 2. p. 12256. the Lords found an indorsation on the back by Crawfurd of Drumsuy to Bundy, without witnesses, conveyed such a promissory note, and refused compensation against the indorser; all which speaks them to be of the nature of bills. 2do, This is farther confirmed by a statute in England 3tio et 4to of this Queen's reign, and revived anno 7mo, ordaining all promissory notes to have the privilege of inland bills in time coming; and the last act being since the Union must extend to Scotland. Replied, This note can never be transformed to a bill; and that case of Bundie's was of a note granted at London, whereas this is done in Scotland; and the acts do not reach us, seeing the Second is only a Continuation of the first, which did only concern England; and the second as accessorium can go no farther. If one makes rules of court for his barony, and afterwards purchases another barony, the first rules will not extend to the second without a new appointment; no more can the English acts since the Union reach us in private cases, without Scotland be expressed, our private laws being by an article of the Union reserved. It is true, the acts against counterfeiting of money, and the several species of treason, extend to us as well as England; but these laws regard the public police, and not private right. The Lords thought these promissory notes did not require witnesses, but could not be the ground of a summary charge; and that the English acts appeared by their stile and manner of executing, by their scire facias, &c. to relate only to England; and therefore found the summary charge unwarrantable, but thought it might subsist as a libel, without any new process thereupon.
