Question, whether a bill for fungibles ought to be sustained as 4 probative writ.
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Bruce accepted a bill to John Wark, dated in the year 1718, binding himself to/deliver, on 1st May 1718, a quantity of victual of crop 1717. Bruce brought a reduction of the bill as granted not for money, but for fungibles, and so ineffectual. Lord Drummore Ordinary, “Found, the bill being dated in the year 1718, for victual of the crop 1717, and containing obligations that were not transanctible by bill, was therefore null”
Christian Wark, and Archibald Maxwell, her husband, as executors of John Wark, defenders in the reduction, presented a petition to the Court, founding on Lesly against Robertson, and Douglas against Erikine, the two cases immediately above, as ascertaining that the bill ought not to be held to be null. In answer, it was contended, that all obligations conceived in writing ought to have the solemnities requisite by the statutes. That bills of exchange had, by statute, particular privileges; but it was obvious, from the terms of the statutes regarding them, that money only was meant to be the subject of the documents so privileged.
The Court pronounced an interlocutor, “Sustaining the bill as a probative writ; but remitted to the Lord Ordinary to hear parties procurators on the presumption of delivery, with power to determine or report.”
Bruce presented a petition, praying the Court to find, that the bill in question was not a probative writ.
This petition was never advised.—Upon what authority, therefore, Lord Kames, in his abridged report of this case, supposes it to have been settled, that ‘a bill or precept for the delivery of fungibles is not sustained as a probative writ,’ does-not appear.
Fol. Dic. v. 1. p. 95. Session Papers in the Advocates' Library.
