Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. reported by Alexander Tait, Clerk of Session, One of The Reporters For The Faculty.
Subject_2 BANK NOTES.

Gibson and Balfour
v.
George Goldie

Date: 8 December 1777

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In a dispute betwixt Messrs Gibson and Balfour and George Goldie, as creditors-arresters of James Scott's share in the sugar-house ;—two points occurred, viz. A dispute of preference on the time; Mr Goldie's arrestment being laid on betwixt the hours of four and six afternoon, and Gibson's and Balfour's betwixt the hours of six and nine at night. Another objection occurred to Gibson and Balfour's, viz. That it was only in the hands of Francis Kemptie, as clerk to the company. See Erskine, p. 512, and Cameron against Boswell, there cited. Lord Auchinleck, Ordinary, having preferred Goldie,—Gibson and Balfour reclaimed, December 1777. The Lords remitted the petition to the Ordinary to hear further : they were not satisfied with the ground of Goldie's debt, which was a decreet in absence before the Judge-Admiral, on an unattested account of linens; and they hesitated about Gibson and Balfour's arrestment, as in the hands of the clerk only.

BANK NOTES

Bank Notes are considered as money, and treated accordingly. See the case of Miller against Rae, in Burrow's Reports, Vol. I. p. 452 ; see also Rem. Dec. No. 105, Mr Hew Crawford against Royal Bank.

The point occurred, 2d March 1756, Duke of Gordon against M'Pherson, in the first Faculty Collection, with regard to the redemption of a wadset, by consignation of Bank of Scotland notes; and it was again stirred, 17th June 1761, in the case between the Duke of Gordon and Gordon of Cockelarachy, observed in third Faculty Collection, No though not noticed in that Collection,—“ Whether a wadsetter was obliged to receive his payment of the wadset sum from the reverser, in the notes of one or other the Royal Bank or Bank of Scotland ? and whether payment of a sum in bank notes can be obtruded upon the creditor whether he will or not?" There was a conclusion to this purpose, in the declarator of redemption raised by the pursuer,—but it was treated as peevish, and the wadsetter declared he was not capable of such chicanery, that is, of refusing bank notes. So, no explicit interlocutor was given upon it; but the lands were found to be redeemable, &c.

In another case, between Mr Burn of Kinloch and Mr Barclay of Pittacheys, the same doctrine was disputed, as to Douglas and Heron notes. In this case, it was a purchase in trust by Mr Barclay for Mr Bruce, under back-bond, to denude to Bruce on payment of a certain sum. The informations are dated 25th April 1771.

The point again occurred, 15th January 1778, adhered to 5th March 1778, in the famous case of succession between Elcherson and Davidson, concerning the effects of Murray, a supercargo, dying at Hamburg, in whose chest a sum of money in bank notes was found. The Lords did not consider them as nomina, but as money, and regulated the succession accordingly. They divided upon this point, but the above was the opinion of the majority; and in particular, Lord Braxfield was of opinion, that all bank notes payable to bearer, and passing in currency from hand to hand, as money, were money to every effect and purpose ; whether of the public or private banks.

In this case, it was not certain whether the bank notes were of these banks or of the Aberdeen bank.

It has been objected in trials of forgery of bank notes, that they are not obligatory, not having the solemnities of the Act 1681 ; see British Linen Company against Baillie,—particularly information for Baillie, dated 4th February 1765.