Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR DAVID DALRYMPLE, LORD HAILES.
Subject_2 BILL OF EXCHANGE.
Subject_3 The payee of a Bill, bearing to be for value, found obliged to condescend upon the value, in respect that it was not a mercantile transaction, but a Bill drawn by an officer of the army in favour of his physician.

Doctor John Eustace of the City of New York, Physician,
v.
Mrs Ann Pringle, Widow of Colonel John Young

Date: 8 August 1766

Click here to view a pdf copy of this documet : PDF Copy

On the 21st April 1762, Colonel Young, of the 46th regiment of foot, drew and accepted a bill upon himself, payable three months after date, at his agent's, Mr Henry Drummond of London, to Doctor Eustace, for L. 400 sterling value received.

On the 24th July 1762, the bill, having been presented at Mr Drummond's, and payment refused, was regularly protested.

In April 1766, Colonel Young died: his widow was decerned executrix to him. Dr Eustace insisted in an action against her for payment of the bill. The widow, suspecting that the bill was not for value, but impetrated gratuitously from the Colonel while at New York in a weak condition of mind as well as body, insisted that the Doctor should make answer to special interrogatories put to him concerning the cause of this bill, and the nature of the transactions between him and the Colonel.

On the 5th August, “The Lord Gardenston, Ordinary, ordained the pursuer, by a writing under his hand, to condescend on the value of the bill, and to answer the special interrogatories relative thereto.”

The pursuer reclaimed and pleaded, That, in all mercantile countries, when a bill is granted, value is presumed, even although not expressed, unless the contrary be instructed by writing or oath of party; and this a fortiori must be the case when, as here, the bill expressly bears value received. There is no example where the onus probandi of value, or even of condescending on the value, was laid upon the porteur of the bill, when the bill itself bore value received. See 11th February 1701, Wightman against Moncur, observed by Fountainhall. If the defender is not satisfied of the onerosity of the bill, or suspects any fraud, she may bring a reduction of the bill. The pursuer condescends, that it was granted on account of 18 months' entertainment of the Colonel, and of the pursuer's personal attendance on him as a physician during that space: and he is bound to do no more: Perhaps he has done already more than was incumbent on him. “His compliance might be fatal, in point of precedent, to the established laws of every mercantile country.”

On the 8th August 1766, “The Lords adhered.”

Petitioner.—William M'Kenzie. OPINIONS.

Hailes. The petitioner is very anxious for the law of merchants. This, however, is not a mercantile transaction,—a bill drawn by an officer of the army in favour of his physician.