[1797] Mor 1648
Subject_1 BILL OF EXCHANGE.
Subject_2 DIVISION V. Bills by the lapse of time lose their Privileges.
Date: Patrick Campbell,
v.
Duncan Campbell and Robert Steuart, Trustees of Alexander Campbell
19 May 1797
Case No.No 207.
Action sustained for a debt vouched by a doqueted account and a bill, both of the same date, after the latter was prescribed.
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Patrick and Alexander Campbell were engaged in various joint concerns. On 15th May 1782, they settled accounts, and a balance of L. 490 was found to be due by Alexander; for which he then granted a bill to Patrick, payable three days after date.
To the account thus settled, the parties, at the same time, subjoined the following doquet:
15 March 1782.
“This account, containing an abstract of the accounts paid and settled, of this date, being examined by the said Alexander Campbell and Patrick Campbell, it is found and declared, that a balance of L. 490 Sterling arises to the said Patrick Campbell; for which the said Alexander Campbell has now granted his acceptance, payable three days after date, and which, when paid, is in full of the above.”
Alexander Campbell died a few months after the date of this transaction.
In 1793, Patrick Campbell brought an action against his trustees, for payment of the debt contained in the doqueted account and bill.
The defenders pleaded: The bill founded on, being prescribed, can afford no ground of action, and as little can the doqueted account. If the bill had been paid and retired, or had it been loft, the pursuer's claim would have been at an end; and it must be equally so, in consequence of the bill being prescribed, as the law presumes, presumptione juris et de jure, that a bill in that situation has been paid; 31st January 1787, Buchan against Robertson Barclay, Fac. Col. No 303. p. 467. voce Prescription, Sexennial.
Besides, by granting the bill, a novatio debiti took place, which put an end to the debt contained in the doquet; 19th February 1779, Buchanan, &c. against Sommerville, Fac. Col. No 71. p. 135. voce Debtor and Creditor, Indeed, the interest of the parties was materially altered by the bill. The debt, in terms of the doquet, if it carried interest at all, carried it from the 15th March, but as due by the bill, it did so only from the 21st; by the former, it was demandable any where; by the latter, only at the place mentioned in the bill.
Answered: The action is founded on the doqueted account. The bill is produced merely as evidence, that the debt due by the doquet remains unpaid. Nor can taking the bill be held as a novatio debiti; for the two documents were granted unico contextu. Novation indeed is never presumed; Erskine, b. 3. tit. 4. § 22. And accordingly, where two obligations are taken for the same debt, the creditor is entitled to the benefit of both; 6th July 1697, Hay against Hall, Fount. v. 1. p. 782. voce Presumption; 6th July 1706, Brand against Yorkston, No 128. p. 1549.; 26th June 1711, Oswald against Gordon, Forbes, p. 511. voce Presumption; 10th July 1713, Ramsay against Reid, Forbes, p. 702. Ibidem. In this case the bill was granted, not to diminish the effect of the doquet, but to give the pursuer more easy access to payment; and the bill was referred to in the doquet, in order to show, that both related to the same debt.
The Lord Ordinary took the cause to report on memorials.
Two of the Judges were of opinion, that the bill being prescribed, it could be of no avail towards establishing the debt; and that as the doquet referred to
the bill, it was per se ineffectual for that purpose. If a bill granted for the interest of a bond (it was observed) were allowed to prescribe, an action would not afterwards be sustained for payment of it, although no discharge were produced. The rest of the Judges thought, that the subscribed doquet, joined with the production of the bill unretired, afforded satisfying evidence, that it was still unpaid, especially as the original debtor had died within a few months after the bill became due, and his representatives did not allege that they had paid it.
“The Lords repelled the defences set up by the defenders to the sum of L. 490 Sterling, as the balance found and ascertained by the doqueted account pursued on.” See Prescription. See Pesumption.
Lord Ordinary, Craig. Act. Cullen, Geo. Fergusson. Alt. M. Ross, Davidson. Clerk, Menzies. *** In the Session Papers of the case M'Kenzie against Urquhart, No 137. p. 1561. it is mentioned, that in a case then in dependence, Mr David Coupar against Sir George Stewart of Gairntully, (Examine General List of Names,) Sir George, as drawer of a bill upon the deceast Earl of Cromarty his grand-father, indorsed to Coupar, was pursued for recourse after twenty years, though no protest had been taken against the Earl. The Court had found, that in respect of neglect of negotiation, the pursuer had no recourse against the drawer. But Coupar having, in a petition, averred, that the drawer had no effects in the Earl's hands, their Lordships appointed an investigation into that matter.
*** In the case Sinclair against Sinclair, No 13. p. 1377. where the penal consequences of battery pendente lite were refused, because the person assaulted had betrayed a premeditated intention to provoke the assault; the original action in dependence was a process of reduction and improbation of a bill and a bond. The bill was said to have been granted on death-bed; and that it had not been signed by the drawer, at the time of the acceptance. This last circumstance, it was argued, was of such importance, and, if proven, would have been so fatal to the document, that the dread of this consequence was held out as a probable motive for provoking the assault. See Div. 1. Sec. 5. h. t.
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