1736.
November26.and
January7.
1737. Case No. No 17.
Found in general that a donation cannot be constituted by a writing in the form of a bill.
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Mary Weir, relict of Malcolm M'Gibbon musician in Edinburgh, accepted a bill for L. 7000 Scots, payable to John Weir of Kerse her brother, of a date prior to her second marriage with John Parkhill, of the following tenor:
“Dear Sister, Pay to me, John Weir of Kerse, or my order, at my dwelling-house in Edinburgh, eighteen months after date, the sum of L. 7000, Scots money, value due by you to me, as your deceased husband ordered you; make thankful payment, and oblige,” &c.
In a process at Weir's instance against Parkhill, the second husband of the said Mary Weir, for payment of this bill, the Lords, by their interlocutor of the 26th November 1736, Found, ‘that a donation cannot be constituted by a writing in the form of a bill, and found it proved by the tenor of the writing in question, that the same is gratuitous, and therefore sustained the defence and assoilzied.’ And, on advising petition and answers, by their interlocutor 7th January 1737, Found ‘that a donation cannot be constituted by a writing in the form of a bill; and found it proved by the tenor of the writing in question joined with the pursuer's admission in the course of the process, that there was no testament executed by the deceased Malcolm M'Gibbon, Mary Weir's first husband, ordering the payment of the sum in debate, and therefore found that the said writing is gratuitous,’ and with that addition, ‘adhered to their former interlocutor.’
Neither of the statutes 1681 nor 1696 have said any thing to determine what is a proper bill, what not. They have given force to no writing as a bill, which such writing would not have had before. All they do is, to give the further privileges of annualrent, and diligence, to writings, supposed to be probative as bills; so that what writing constitutes a bill, is left to be gathered from the practice, and law of nations; and as, by the practice of nations, bills were devised as a vehicle for transporting money, for the utility of commerce; it was said, that the very first notion of a bill was, that it be for value, either with respect to the drawer or acceptor; and where no value is, the very reason ceases for which bills were, by the practice of nations, introduced.
The Lords went even further in the case, Fulton and Clerk contra Blair, 9th November 1722, No 15. p. 1411.; where they found, that a bill, granted by way of donation mortis causa, was void, even where the bill was absolute in its form; it being proved, that the real cause of it was a donation; which was perhaps going too far: For, whatever may be said as to bills bearing in græmio to be gratuitous, or what imports it; yet where a bill is ex facie formal, that it should become void, because, upon enquiring into the cause of it, it is found to have been a donation from one to his friend, would seem not so easy to justify.
Fol. Dic. v. 1. p. 96. Kilkerran, (Bill of Exchange.) p. 68.*** C. Home reports the same case:
Mary Weir, relict of Malcolm M'Gibbon, having succeeded to his effects, did, in the year 1723, marry John Parkhill; and, in their contract of marriage, she disponed to him all her goods and gear, whether heritable or moveable, pertaining to her, or that she might succeed to any manner of way. This marriage dissolved, by Mary Weir's death, in the year 1734; after which, her brother, the said John Weir, intented an action against John Parkhill for payment of a bill, granted by his sister to him, before her marriage with the defender, of the following tenor or contents:
“Edinburgh, March 14, 1723. Dear Sister, pay to me, or my order, at my dwelling-house in Edinburgh, eighteen months after date, the sum of Seven thousand pounds Scots money value, due by you to me, as your deceased husband ordered you; make thankful payment, and oblige your humble servant.”
(Signed) John Weir, and addressed to, and accepted by, the said Mary Weir.
Against this writing, it was objected: That the same was void, for want of the writer's name and witnesses; it being no bill in re mercatoria, but a plain gratuitous obligation, as appeared from the words of it: Neither did it prove its date; and so, if a true writing, might have been granted after the defender's marriage, in which case he could not be liable. In support whereof it was observed, That the extraordinary privilege granted to bills, of their being probative, without the legal solemnities, arises only from their utility in commerce; but where they are not in re mercatoria, as in this case; there is no reason for sustaining, or giving them any such privilege. On the contrary, they ought to be discouraged, as dangerous to property, by opening a door to manifest frauds. Another reason for allowing extraordinary privileges to bills in mercantile affairs, is, That, by their nature, they are not to ly over, but to be speedily negotiated; and so, if false, may be easily subject to challenge: But, if it be allowed, to take a bill in place of a bond, where there is no mercantile dealing, and for no consideration in money, there is an end of our law, which has introduced the solemnities of writings, as necessary for the security of the subject. Agreeable to these principles, it was found, That a bill was not a legal method of constituting a debt or legacy, in so far as it was gratuitous, 13th February 1721, Hutton, No 16. p. 1412.; which is extremely similar to the present question; seeing by the tenor of this obligation, it is no other, than the acceptance of the burden of a legacy. Now, no reason can be given, why a bill for a legacy should be void, for want of the solemnities; and that one undertaking the burden of a legacy, should stand good. In short, the very nature of a bill is to be for value; and, if it bear to be so, that may be sufficient to sustain it; because the presumption is on the side of the writ; yet, if in græmio, it bear not to be for value, but for a gratuitous cause; there it ought to have no privileges; if it were otherwise, all contracts might be turned into bills. Conform to this reasoning, it has likewise been found, That a bill, granted in the way of donation, mortis causa, was void, 9th November 1722, Fulton, No 15. p. 1411.; where it was admitted, That, if it had expressed the cause thereof, so as to point out, that the same was a gratuity, it would have been void: Now, in the present case, this writing is felo de se; it is not an absolute draught; not so much as the form of a bill for value; but bears its cause to have been a verbal legacy; which, it is pretended, the acceptor's husband left to the drawer; and which she could not have been obliged to pay. It is upon the same foundation, that bills, bearing annualrent and penalty, are void; such stipulations not being suitable to the nature of the obligation.
As to the last part of the objection; it was observed, That, if such obligations were to prove their dates, no husband could ever he secure against the deeds of his wife; it being so easy to antedate them, especially for gratuitous causes; nay, every reason, that makes holograph writs not prove their dates against an heir concurs in support of this part of the objection.
Answered for the pursuer: There is no foundation in law for maintaining, that a bill, given by way of pure donation, will not be valid: May not a man, who intends to make a present of a hundred pounds, accept a bill for the payment of it? Surely that will be as obligatory upon him, as if it were for value: The pursuer is at a loss to find out a reason for doubting; seeing, if a man, who was not debtor ab ante, can gratuitously make himself so by a bond; it is inconceivable why he should not be able to accept a bill for that sum. The law gives force to all inland-bills, or precepts in general, without distinguishing whether for value or not; and, therefore, the present one, though it were gratuitous, is secure against this objection; at the same time, it is not altogether so, being granted in implement of her husband's request, to whose effects she succeeded; had she paid the money, it could not have been repeated condictione indebiti; consequently, it is evident, the bill was binding on her; and, of course, must affect her husband, who cannot pretend to take her estate, without the burden of her debts. It is true, that where the form of the obligation has deborded from the common nature of bills, and parties have sought, under the colour thereof, to create a different contract, the Court has justly disregarded such writings; but, when there is a drawer and acceptor, and a fixed term of payment of a certain sum; which properly constitutes a bill; it has never yet been found, that such writing is not entitled to the usual privileges. Indeed, a bill to pay a sum of money after the acceptor's death, accepted in trust, that, if the party did not then die, it was to be given up, and, if he did die, the same should stand as a legacy, was declared void, in the case between Fulton and Clark, No 15. p. 1411.; because, obviously, this transaction was the making a will, and not the acceptance of an order to pay a sum of money: As this was the fact, it amounted to no more than a legacy, or mortis causa donatio; and therefore the Court, very justly, would not support the writing: But here the draught is pure and simple, having no quality, or condition, to difference it from the common style and nature of bills; wherefore it must stand, as long as the act 1696. An obligation likewise to pay a sum of money with annualrent and penalty, is clearly a permanent security, for money intended not to be paid, but to ly at interest; and therefore is directly opposite to the form and nature of a bill; so that, though it may be conceived in appearance, by way of draught and acceptance, to entitle it to the privilege of one; yet, in reality, it is not a bill; and the sustaining it as such, would encourage conceiving permanent securities in that form, which might be attended with great danger. With respect to the hazard, to which the lieges would be exposed, if such deeds were sustained, from the impossibility of disproving their dates; it was acknowledged, they were undoubtedly liable to many abuses; but that was nothing to the purpose; seeing the statute has said, That they should be valid; and, therefore, so long as it remains in force, such considerations can have no weight.
The Lords found, That a donation could not be constituted by a writing in form of a bill; and that there was no onerous cause for the writing produced.
