How far the Command of a Superior infers Bona Fides.
Macpherson v. Arrot
Date: 22 January 1767 Case No. No 22.
A factor for the rebels, in 1745, indorsed precept on tenants for their farm victual, by order of the pretender's secretary. He was found not liable in recourse. The indorsee was in the knowledge of his situation, and he was at the time under absolute controul.
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John Arrot, by order of John Murray of Broughton, secretary to the Pretender, drew precepts on the tenants of the estate of Winton for their farm victual. These precepts were accepted by the tenants, and indorsed by Arrot; against whom action was brought, after the precepts had been protested against the tenants, for not delivery, and against the drawer for recourse.
The pursuer contended, That these precepts must be considered in the same light as bills of exchange, so as to subject the drawer and indorser in recourse.
The defender, on the other hand, pleaded, That the precepts were null, as wanting the solemnities of probative writings. And, supposing them actionable, that the indorsations could be made in no other light than that of an assignation, which implies warrandice from fact and deed only; and which warrandice is not incurred in the present case, since the refusal of the tenants to deliver the victual was not occasioned by the fault of the defender, but was a necessary consequence of the suppression of the rebellion; so that the principles will apply, which were established in the action brought by the Town of Paisley, against Mr Murray, for restitution of the money levied by the rebels. See Reparation.
“The Lords, in respect the precepts were drawn by the defender, as factor appointed by the rebels upon the estate of Winton, and purchased by the pursuer's author, when in the knowledge of the character in which he acted, and that the value paid was applied for behoof of the rebel army, which was then in possession of that part of the country, found that the defender is not liable in recourse.”
Act. Jo. Williamson.Alt. Montgomery.
Fac. Col. No 52. p. 281.
