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.
Subject_3 To preserve recourse against an onerous indorsee on a bill passed by him in course of trade, the bill must be duly negotiated, whether the drawer was creditor or not to the person drawn on.

John Finlayson
v.
John Ewen

Date: 2 February 1773

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[Faculty Collection, VI. 136; Dictionary, 1, 597.]

Coalston. Had the question been with the drawer of the bill, the objection of undue negotiations would not have been good. The case is different when the question is with the indorsee.

Pitfour. The decision in Falconer, 29th January 1751, where the contrary was found, is rightly reported by the Collector; but that was the first judgment. The Court altered on a review.

Gardenston. The cases quoted in the petition are in point.

Monboddo. I am glad to hear that it is held to be law, that the objection of undue negotiation is good in a question between the original creditor and the drawer. I do not see the difference between that case and this: every draught is an assignation,—every assignation supposes that debitum subest.

President. I lay the case upon the nature of bills, that an indorsee may take the benefit of the objection arising from an undue negotiation, though the drawers cannot.

On the 2d February 1773, the Lords found no recourse due, and therefore suspended the letters; altering Lord Monboddo's interlocutor.

Act. G. B. Hepburn. Alt. W. M'Kenzie.