Scottish Court of Session Decisions

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

Pollock
v.
Maxwell

Date: 15 July 1760

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In this case a bill was indorsed by a debtor of the indorsee’s for payment, and, accordingly, he got a receipt from the indorsee, acknowledging it to be in payment pro tanto. The acceptor of the bill had an objection of fraud, which was good against the indorser. The question was, Whether the same was good against the indorsee?

Lord Alemore made no distinction betwixt this case and the case of a bill indorsed for security: in which case it is established law that every objection competent against the indorser is likewise good against the indorsee; because, he said, wherever a bill is indorsed, not in the way of commerce, (that is, as a vehicle of money,) but by way either of security or payment, utitur jure communi, and the indorsement is no more than a common assignation: But Lord Coalston inclined to be of a different opinion, and to make a distinction betwixt payment and security; but all the Lords agreed, though upon different media, that the objection of fraud in this case was competent.