Of Bills with clauses stipulating Annualrent and Penalty.
Margaret Lauder and Her Husband, v. Patrick Murray of Cherrytrees
Date: 10 June 1744 Case No. No 28.
A bill including interest from the date to the term of payment; and one including interest from the date until paid, both sustained.
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The pursuers having right to two bills, due by the defender to the deceased Mr Lauder, minister at Eccles, brought an action for payment.
Against the first bill, it was pleaded, That the defender had been hooked in by the said Mr Lauder, to grant a bill for the price of a watch, payable at his marriage; at a time when Mr Lauder was thought so old, as to be past thoughts of marrying; and for near five times the value of the watch. In such a case he could not be blamed to plead every legal objection against the bill; and there was an obvious one, which lay to the form of the bill now pursued on; which had come in place of the original one; viz. that it bore a clause, ‘with interest from the date;’ which was urged to be inconsistent with the nature of a bill, before the term of payment, (which, in this case, was the term of Lammas after the date;) and that any clause thrown into a bill, foreign to the nature of it, vitiates the same, and renders it void and null, 2do, That such a clause is not implied in the nature of a bill, but altogether extraneous to it: It is changing the nature thereof, from being a bag of money, to make it a permanent security, a feodum pecuniæ, like a bond; which behoved to exclude the jus mariti and single escheat.
With respect to the second bill, which was payable at the Whitsunday after its date; it was observed, that it bore a clause, with interest from the date thereof until the same be paid. But, in regard that this bill was better founded in equity than the first one, the defender declared he was always willing to pay it; only he submitted, Whether he ought to pay interest upon it, before the term of payment?
To the objection to the first bill, it was answered, That all bills bearing value in the acceptor's hands, at the time of the draught, do, by their own nature, carry interest along with them; and, when a suit is brought on such, interest is always awarded nomine domni.
2dly, A foreign bill, though it does not express interest, exchange, &c. yet, by dishonouring thereof, all these become due by law, and the practice of merchants.
3dly, It would be absurd to suppose, that the expressing in a bill, what is naturally implied in it, could vitiate it in toto.
4thly, It would destroy whole companies, amongst whom nothing is more common, than to include in the bill itself the annualrents, from the date till the term of payment; and this practice has been confirmed by a course of Decisions. See December 1727, Henderson, No 20. p. 1418. June 1737, Dinwoodie, No. 22. p. 1419. December 1738, Gilhagie, No 23. p. 1421.
And to the claim for interest on the second bill, it was answered, That, as the defender acknowledged the bill was well-founded in equity; it followed, that the pursuers were entitled in justice, to have the legal interest for their money. 2dly, That Whitsunday 1712 is the term fixed for the payment of the bill; and the adjection of these words, with interest thereof until the same be paid, means no more, but that it should bear interest from the date, till the above term of payment, whereby it does not differ from the other bill.
The Lords repelled the objection to the first bill, and likewise to the second, in respect the defender acknowledged the debt to be just.
