Subject_1 BILL OF EXCHANGE. Subject_2 DIVISION II.
The Porteur's Action against the Person upon whom the Bill is Drawn.
Subject_3 SECT. II.
Extraordinary Privileges of Bills.
Thomas Wightman v. David Graham
Date: 6 December 1787 Case No. No 108.
The exception of violence arising from legal concussion, found good against the onerous indorsee of a bill of exchange.
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Robert Burgess paid a sum of money which was due by his father, and afterwards obtained from David Graham, the creditor, an assignation of the debt with warrandice from fact and deed.
He immediately took out a caption in virtue of the clause of registration annexed to the assignment; and thus, by the terror of imprisonment, compelled the assigner to grant a bill of exchange, in which the sums originally due were accumulated, with the interest, and the expence of diligence.
For setting aside this bill, a process of reduction was brought; and, in absence of the defender, the common interlocutor was obtained, finding it null and void, until it was produced. But, a few days after, Robert Burgess indorsed it, for value, to Thomas Wightman; who, in an action for payment against David Graham,
Pleaded: No exception is competent against the onerous indorsee of a bill of exchange, which does not appear from the writing itself. And hence it has been found with regard to bank-notes, on account of their similarity to bills of exchange, that the exception of theft, which, in general, is productive of a labes realis, cannot be pleaded against a bona fide holder. In the present case, however there does not seem to be a sufficient degree of violence to afford a relevant defence even against an ordinary assignee. Imprisonment, without the order of law, is, doubtless, a sufficient ground of reduction; and, in the same manner, any arrest of the person will be sufficient to annul an obligation which has no connection with that on which such detention has followed. But here the grounds of the diligence were ex facie just, and the imprisonment was followed out in the ordinary way. As to the proceedings in the action of reduction, these cannot be thought to be of any consequence; the certification in this action, when it does not contain a warrant for improbation, being only, that the writings called for shall be of no effect, until they are produced in judgment; Erskine, b. 3. tit. 2. § 31.; Bankton, b. 1. tit. 13. § 15. 24th February 1749, Crawford contra Royal Bank, (p. 875.); Voet. ad tit. Quod Metus Causa, No 10.; Stair, b. 1. tit. 9. § 8. b. 4. tit. 40. § 26. 27.; Dictionary, voce Vis et Metus; Erskine, b. 4. tit. 1. § 24.
Answered: The privilege of current bills is not disputed. But, in every action founded on a written document, it is necessary that the obligation, of which it is the voucher, shall not be destitute of those qualities that are essential to every agreement. If it has been impetrated by force or fear, the shape in which it has been framed cannot be of any importance. This reasoning, indeed, is peculiarly applicable to the present case. For, as it arises from the implied will of the acceptor of a bill of exchange, that those defences, which would otherwise be competent, are not available against an onerous indorsee; this being a necessary consequence of subscribing a writing of this sort; so, where the subscription has not been the result of his free-will, but extorted by violence, there is no ground on which an obligation so unlimited, can receive any support. So, accordingly, it was expressly found, 26th November 1776, Willocks contra Callender and Wilson, No 104. p. 1519. The circumstance of a decree of reduction having been obtained before the indorsation, is a strong confirmation of the general argument. For, if by the mere execution of a summons, or, by its being called in Court, the right becomes litigious, and incapable of alienation; surely, when a decree has been obtained, finding the right itself to be void and null, the same consequence must unavoidably follow.
The Lord Ordinary gave judgment against the defender.
But, after advising a reclaiming petition and answers, the Court being of opinion, that a writing, impetrated like the one in question, was of no validity.
The Lords sustained the defences, and assoilzied.' See Vis et Metus.
Lord Ordinary, Hailes.Act. Geo. Fergusson.Alt. Corbet.Clerk, Menzies.
Fol. Dic v. 3. p. 81. Fac. Col. No 9. p. 16.
