Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.
Subject_2 MONBODDO.

Angely
v.
Arbuthnott

Date: 13 July 1739

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[Elch., No. 20, Bill of Exchange; Kilk., No. 2, Factor.;]

Angely, merchant at Bordeaux, gave a factory of some lands he had bought in Scotland to his correspondent, Arbuthnott, merchant in Edinburgh. This factory continued several years, till the year 1737, when Mr Cave, to whom Arbuthnott had sold the victual of Angely's lands, gave way. Mr Arbuthnott having taken the bills from Mr Cave in his own name, without any mention of their being for Angely's victual, Angely brought a process of count and reck. oning against his correspondent, wherein he contended that he should be liable for the value of these bills which he had taken in his own name, and so was supposed to have subjected himself to the risk of them; especially considering that, if Mr Arbuthnott had given way, these bills could not have been distinguished from his proper effects, and so would have been affectable by his creditors, by which Mr Angely would have run a double risk both of Arbuthnott's insolvency and Cave's.

The Lords, first, upon petition and answer, found that Arbuthnott was liable; but afterwards, upon advising a reclaiming petition and answer, they found, nemine contradicente, Arbuthnott not liable; because, 1mo, It was the ordinary custom of merchants to take bills in their own name for the effects of their correspondents which they had sold; and this had been the practice between these two gentlemen for several years past.

2do, There was no appearance of fraud in Mr Arbuthnott.

3tio, Upon production of Arbuthnott's books it appeared that these bills were so stated there, that, in case of a competition between Angely and Arbuthnott's creditors, they might have been distinguished from Arbuthnott's effects.

4to, Supposing they could not have been distinguished, yet so exuberant is the trust among merchants that an employer is supposed to take his risk of any losses he may sustain by the insolvency of his correspondent.

Reversed above.