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 It was found that a Bill, of which the acceptance was procured by concussion, was ineffectual in the hands even of an onerous indorsee.

George Willox
v.
John Callendar and William Wilson

Date: 26 November 1776

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[Folio Dict. III. 81; Dict. 1519.]

Monboddo. The bills were indorsed for behoof of William Willox, and for value. The only question is as to the effect of vis et metus: that is a good exception, even against an onerous indorsee. Although a man is imposed upon in signing a deed, it is still his deed; but when a man is forced by terror to sign a deed, it is no more his than if his hand had been led. Bills for a game debt may still be excepted against, though indorsed for value: this serves to explain the principle. The only question is, Whether the exception applies?

[As to this, his opinion was not very clear.]

Gardenston. It makes no difference whether the bills, when delivered, were indorsed blank or not. As to onerosity, I should doubt. If the cause rested there, I rather incline, from the species facti, to hold that here there was an indorsation in security. Be this as it will, vis et metus is pleadable against an onerous indorsee. My brother is mistaken as to his argument concerning game debts. In such case it has been repeatedly found that an onerous indorsee is entitled to force payment; and with good reason, for why should your facility in granting a bill hurt me an innocent person, who advances the money on seeing the security of your name. But wherever there is vis et metus, there is no deed: here there is as strong an instance of fraud and concussion as can be conceived.

Kaimes. I cannot perfectly concur in what is said as to the effect of force and fear. If a man clap a pistol to my breast, and make me sign a deed, the deed is good for nothing: my hand is there, but not my intention. I doubt as to the application to this case: the grant was intentional, in order to escape prison, and it was effectual to that purpose. I doubt whether this objection would be good against an indorsation for an onerous cause; but I do not see any such indorsation here.

Covington. This was plainly an illegal transactio de crimine.

On the 26th November 1776, “The Lords sustained the reasons of suspension.”

Act. J. Swinton. Alt. R. Cullen. Reporter, Covington.