Scottish Court of Session Decisions

The suspender Dickie, a spiritdealer in Glasgow, made two purchases of whisky from the chargers, John Carnie and Company, distillers at Barrowfield, through their agents, Messrs Cassels and Stewart, for which he granted separate bills, the one dated 14th November, 1833, payable 14th March thereafter, and the other dated 27th December, and payable 27th April. When the first bill fell due, it was in the hands of Thomas Sheills and Company, to whom it had been indorsed by Carnie and Company, and by whom it was protested, and placed in the hands of their law-agents, intimation being made to Dickie, on the 26th March, that it was to remain with them with a view to ulterior proceedings. On the 31st March, a payment of £15 was made by Dickie to Cassels, Carnie and Company's agent, who handed it over to Carnie and Company, by whom it was entered as a payment generally to account. When the second bill fell due, it also was dishonoured, and both were thereupon taken up by Carnie and Company, who raised diligence upon both, charging Dickie for the full amount of the first bill, and restricting the charge on the second by the amount of the £15 paid to account. Dickie never objected to the charge as for an amount beyond what was due on the first bill; but having been denounced, and letters of caption having been taken out on the charge upon the first bill, whereupon he was incarcerated, he presented a bill of suspension and liberation, on the ground that the payment of the £15 having been made when only the first bill had fallen due, it must of necessity have gone in liquidation pro tanto of it, so that the diligence was improperly used for the full amount; and that although a charge might competently be restricted, a caption for a larger sum than is due must necessarily be suspended. To this it was answered, that when the payment of £15 was made, the first bill was in the hands of the indorsees, and known to Dickie to be so; and, consequently, the payment to Cassels, as agent for Carnie and Company, could not then have been imputed to that bill, but fell to be taken as a payment generally to account; and as both bills had become due before diligence was raised, Carnie and Company were entitled to deduct the payment from the amount of either of the bills, while Dickie could have no interest that it should be applied to the one more than the other. The Lord Ordinary (Medwyn) having passed the bill as to £15, but refused it quoad ultra, Dickie presented a second, which was refused by Lord Jeffrey.

Dickie reclaimed.