Scottish Court of Session Decisions

You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Jones v Farquharson [1834] CA 13_117 (4 December 1834)
URL: http://www.bailii.org/scot/cases/ScotCS/1834/013SS0117.html
Cite as: [1834] CA 13_117

[New search] [Help]

SCOTTISH_Shaw_Court_of_Session

Page: 117↓

Jones

v.

Farquharson No. 42.

Court of Session

1st Division D

Dec. 4 1834

Ld. Corehouse, Lord President, Lord Mackenzie, Lord Balgray, Lord Gillies

Mrs E. Miller or Jones, and Husband, Pursuers.— Sol.-Gen. Skene. Robert Farquharson, Defender.— A. M'Neill.

Subject_Bill of Exchange—Stamp.—

Held that the following document was not a promissory note requiring a stamp:—“Paisley, 4th November, 1813.—We hereby acknowledge to have received from Margaret Millar £80 sterling, for which we pay her interest at the rate of 5 per cent per annum, and we oblige ourselves to repay the principal at any time, on getting six months' notice. D. and J. Thomson. Robt. Farquharson. William Angus.”

Mrs Miller or Jones, and her husband, raised action against Robert Farquharson, manufacturer, Paisley, for payment of a sum of £80, and interest; and they founded on the following document, which had been granted in favour of the late Margaret Miller, of whom Mrs Miller was the representative:—

“Paisley, 4th November, 1813.—We hereby acknowledge to have received from Margaret Miller £80 sterling, for which we pay her interest at the rate of 5 per cent per annum; and we oblige ourselves to repay the principal, at any time, on getting six months' notice.” (Signed) “D. and J. Thomson. Robt. Farquharson. William Angus.”

The writ was holograph of either D. or J. Thomson, but not stamped.

Several years after the death of both D. and J. Thomson, and the bankruptcy of Angus, Mrs Miller or Jones claimed payment from Farquharson, who admitted his own signature, but stated that he had never received any part of the money; and that both D. and J. Thomson, who were honest and accurate persons, had assured him before their death that no part of it remained due. In these circumstances, he pleaded, inter alia, that the document was truly a promissory note, and not being stamped as such, it could not support any legal claim. The pursuers answered, that it was not a promissory note; but, though somewhat irregular in form, it was in substance a bond for borrowed money, obliging the parties to pay interest, and to repay the principal on six months' premonition.

The Lord Ordinary “assoilzied the defender, Robert Farquharson, from the whole conclusions of the libel, and found him entitled to his expenses.” ^*

The pursuers reclaimed.

Lord President.—I do not consider this document to be of the nature of a promissory note. There is an obligation to repay, but it is only after a premonition of six months. In regard to the other cases which have been quoted as precedents, it should be observed, that a variation, though apparently very minute, in the wording of such an instrument as this, may make an important change in its legal character. It is therefore very difficult to find one case which can be truly regarded as a precedent accurately in point to another, unless the instrument founded on was expressed in the same terms in both cases. But, judging of this document, after an inspection of it, I consider that it does not belong to the class of promissory notes.

Lord Mackenzie.—I incline to think the instrument of the nature of a bond. The parties “oblige” themselves to repay; they do not use the word “promise,” The style is, undoubtedly, in some respects, similar to that of a promissory note, but, on the whole, I rather think it does not belong to that class of instruments.

Lord Balgray.—I think the document, in gremio, shows that it was the intention of the parties to make it the evidence of a transaction, under which the money was to lie invested for a considerable time. There is a stipulation for interest at the legal rate while the loan continued, and for a premonition of six months before the money could be uplifted. I do not consider it in the light of a promissory note.

Lord Gillies concurred.

The Court found that the instrument was not a promissory note, and remitted to the Lord Ordinary to dispose of the other defences which were pleaded.

Solicitors: J. Richardson, W.S.— A. Nairne, S.S.C.—Agents.

_________________ Footnote _________________

* Note.—“The document in question is a simple and unconditional promise to pay a certain sum at a given period, that is, six months after notice of demand. The words are perhaps not strictly synonymous with those usually employed in a promissory-note, but substantially their purport is the same. The obligation is materially different from one of those in Pirie's case, founded upon by the pursuer, where the party acknowledged receipt of the sum, and promised not to pay, but to account for it, a condition inconsistent with the nature of a promissory-note. If the present document were to be held merely as an agreement, an easy way would be afforded for evading the stamp-laws, with regard to notes and bills.”

SS 13 SS 117 1834