Subject_1 SOLIDUM ET PRO RATA. Subject_2 SECT. XII.
Conjunct Acceptors or Drawers of a Bill.
John Alexander and Mary Hill, v. Margaret Scot, and John Wilson, her Husband
Date: 17 June 1742 Case No. No. 55.
A bill is good, tho' directed to one as principal, and to others as cautioners.
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Andrew Lang drew a bill upon Thomas Scot, directed to him as principal, and three others as cautioners, conjunctly and severally. All the four accepted; and, thereafter, Lang indorsed the bill to two of the cautioners; upon which these two indorsees brought an action against Margaret Scot, as representing her brother Thomas Scot, who was bound in the bill as principal.
Objected, That bills were originally introduced into the practice of nations for the utility of commerce, and, in that view, were indulged with extraordinary privileges; that they had received a determinate form, consisting allenarly of the order to pay the sum therein contained, and the acceptance of that order; so that every other obligation devised in the form of a bill, and every clause in such writing, contrary to the proper form, or inconsistent with the nature thereof, have been deemed sufficient to vacate that writing, as being no longer of the proper tenor and nature of a bill. Upon these principles it has been found, that nothing is the proper subject of a bill but money; and that an obligation, in that form, to deliver a fungible, is not valid. This, and many other instances that could be mentioned, shows, that the law does support obligations foreign to the nature of bills. In the present case, the obligation upon the acceptors is constituted in the form of a security, by principal and cautioners, which is as foreign to the proper form of a bill as any thing can well be. If practices of this kind were encouraged, there is no sort of obligation which might not be transmographied into the form of a bill. 2dly, Supposing the bill not totally void, yet the direction to one as principal, and the rest as cautioners, ought not be regarded, so far as concerns these qualities; and consequently the defenders can only be liable for one fourth of the bill, as if they had all simply accepted the same.
Answered, Bills drawn upon several persons, frequently bear that the effects were delivered to one of them, which constitutes that one principal debtor; and there does not appear to be any difference betwixt a bill of that draught, and a bill in a simple form, without mentioning to whom the value is delivered, but with a direction to one of the persons as principal, and to the others as cautioners. The direction qualifies the acceptance; and if one should accept in case the effects come to his hand, or payable at a further day than that mentioned in the bill, the qualified acceptance is good, and affects the bill: The creditor, by admitting such quality, is understood to consent and is thereby tied down to the qualities. And much more will the acceptor be bound by the terms of the direction, that being a matter purely among themselves, to which they agree by their acceptance adhibit. See 21st July, 1735, William M'Whirtor. (Not reported.) See Appendix.
And as to the second, answered, That qualified acceptances are ordinary in bills; and why the quality may not be inserted in the direction, as well as subjoined to the acceptance, is hard to conceive.
The Lords repelled the nullity objected to the bill pursued on.
