Scottish Court of Session Decisions

Lord Justice-Clerk.—I cannot see any ground for proceeding on any thing but the bond of 1825, which does not, in my opinion, cover the balance under that of 1819. It is said the suspenders are only cautioners for Mr Martin; but, on the face of the bond, they are co-obligants, though the credit was to be operated upon solely by Martin, restricted, as far as they were concerned, to £5000; and the bond contains the usual clause, that a certificate by the officers shall be a sufficient ground to ascertain the debt, whereupon a charge might proceed. I do not think it of much consequence to enter fully into the discussion as to the privileges of cautioners. Nor is this case affected by the decision of the House of Lords in that of Geddes, which does not apply here. Then this certified account is met by a statement, that the transactions which preceded the striking the balances are all illegal, and in violation of the stamp acts; and the suspenders contend, that they are entitled to open up all these transactions. The short answer made by the chargers is, that these are docqueted accounts, according to the uniform course of bank transactions—that the party entitled to operate on the credit has docqueted the accounts and exchanged vouchers, and the docquets not being in violation of the stamp act, they cannot be opened up. Then the question for the Court to determine comes to be, if it be admissible for the party, or imperative on the Court, to open up these transactions. Now, I do not think this falls under the rule of those cases where the Court held themselves bound to interfere even proprio motu. We have no such case here. The docqueted account is not subject to any operation of the stamp acts, and there is no ground for maintaining that the Court must go into the previous transactions to investigate the alleged violations. There is no principle for this where the particular transaction brought before the Court and sought to be enforced, is not liable to objection. There is an express admission on the face of the accounts by the party whose actings must bind the others, that there is a balance due, and there is no express denial, and therefore I cannot see the ground for allowing such investigation. Then, when we look to the clauses in the stamp act, I have great doubt of its application. This is not a question whether penalties have been incurred, but it is raised under the declaration that credit is not to be allowed for money advanced on drafts not according to the statute. On the terms of that clause, however, it seems to me extremely doubtful if any thing more is enacted than this, that the bank paying knowingly shall not be allowed credit in account with the person by whom the money has been drawn; but here the party drawing not only raises no objection, hut signs the docquet acknowledging the balance; and it is very doubtful if any but the drawer, or those in his right, be entitled to take the objection, Under these circumstances, as there would be great danger in allowing any such ex post facto investigations, where the balance is regularly docqueted, I am for finding, with the qualification as to the £525, that the charge is orderly proceeded.

Lord Meadowbank.—I am entirely of the same opinion on both points.

Lord Glenlee.—On the material point as to the objection on the stamp acts, I am clearly of the same opinion. We bare no right to extend the penalty of the statute beyond its express provisions. In an act of this kind, where the only object is to raise revenue, we cannot go beyond its express terms. Here it says credit shall not be allowed. Thus it is put in the power of the party to object to the allowance being made; but, if the party do not object, and allows the Bank to take credit, there is nothing in the statute to entitle him to repetition, and therefore we cannot admit an investigation as to the items of which the balance is composed. As to the point, whether the second bond covers the balance of the first—if the fact be, that all that is asked is what was duo prior to the second bond with interest—then I am satisfied the charge would be right; but not so, if subsequently contracted. The bond, by the very terms of it, declares, that the mere fact of his being debtor makes it chargeable under the new bond, and warrants it being included in the balance due. It depends on the fact, whether the balance arises from a new transaction.

Lord Medwyn.—When the cause was pleaded before me, I thought it very important, and considered it proper to report it. I agree in the general law laid down by the suspenders, but it does not support their case. Even on a construction of the stamp acts, I would feel great difficulty with your Lordship in holding, that any one, except the drawer or those in his right, was entitled to plead the objection. Whether, however, this would have been competent to cautioners or not, they are completely excluded by the docquets of Martin, who alone was entitled, by terms of the bond, to operate on the credit. This necessarily implies that he was entitled to adjust the account, and this is confirmed by the practice following on it; and he was fully warranted in substituting a legal for an illegal voucher. As to the second point, I have considerable difficulty. It does appear to me that the second bond was intended to be merely prospective. If the account had been closed under the first bond, and the balance transferred to the second, it might hare been covered by it, but this is not done, and I scarcely think the general words of the bond sufficient to cover the balance on the first bond—so far I am inclined to think the letters not orderly proceeded.