Scottish Court of Session Decisions

The suspender, Swanston, accepted a bill for £29 to David Brown, W. S., dated 24th March, 1837, and payable four months after date. Brown quitted this country before the bill fell due, having discounted it with Waldie, agent for the Commercial Bank at Kelso. The bill became payable on 27th July, after which it remained over-due without Waldie resorting to diligence against the acceptor, who had intimated that he would resist payment until a certain voucher, which he had put into the hands of Brown, should be delivered up. On the 24th October, Waldie wrote to Peter Brown, a printer in Edinburgh, and David's brother, in the following terms:—“To enable your brother, David, to leave the country more conveniently, I made several cash advances for accounts that were owing him. Among others, I discounted a bill of Swanston's, of £29, 0s. 9d., which has been over-due since 27th July last. I wrote our friend Mr Laidlaw about it, and he wished me to do diligence. Swanston intimated, that he would suspend diligence till his vouchers were delivered up; and, as I am debarred from litigation, by the bank's instructions, it would be fighting with my hands tied up. What I have to propose to you is, to grant me a note at four months for the amount, and with it I could retire the bill, and you or Mr Laidlaw might proceed against Swanston. Our annual balance is on 2d November, and it is important to have the bill arranged before that.”

Thereafter the charger, Archibald, Peter Brown's overseer, granted his promissory-note for £30 to Waldie, and had Swanston's bill, along with a protest drawn out in Archibald's name as of the date when the bill fell due, handed over to him by Waldie.

Archibald then gave a charge to Swanston for payment of the acceptance, whereof the latter presented a bill of suspension, on the grounds, 1st, That Archibald was not a bona fide onerous indorsee, this allegation being referred to his oath; 2dly, That David Brown, the drawer, had lost the voucher above mentioned, which was a bill, and was liable to Swanston for the amount of the debt which it covered.

Archibald, on the reference, deponed inter alia that he had agreed to take up the bill in question on being shown a letter from Swanston to Waldie, and Waldie's letter to Peter Brown (24th October); that he authorized a charge to be given on the bill, though he was uncertain as to the time, but that he had given no instructions to Waldie to take any steps upon the bill; that Peter Brown, in mentioning the matter to him, said that his brother being concerned, he did not wish to have any thing to do with it; that when he agreed to take up the bill, he did not know which was drawer, and which acceptor, or in what way Brown and Swanston's names stood on the bill; that his intention in taking up the bill was to get money for it from Swanston, and in doing so he meant to do a service to David Brown or Peter Brown, or both.

The Lord Ordinary passed the bill of suspension, adding to his interlocutor the subjoined note; ^* whereupon Archibald reclaimed, contending

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^* “The Lord Ordinary's present impression is, that the charge, as given on the protest, cannot be sustained.

“1st, The bill fell due 27th July last, and was then protested, as at the instance of Mr Archibald, the charger; but his deposition, a little circuitously (without, however, any disposition to conceal the truth), comes in substance to this, that he had nothing whatever to do with the bill, and in fact never heard of it, till at or after the date of Mr Waldie's letter to Mr P. Brown, requesting payment; which letter is produced by the charger, and bears date 24th October, 1837. There is, therefore, great reason to suspect the authenticity and propriety of the protest, which is the foundation of the diligence.

“2d, Notwithstanding the conclusion of the charger's deposition, the Lord Ordinary doubts much if he can be held as a fair and bona fide indorsee, seeing he took this bill three months after it was due, and assuredly to save his partner, Mr P. Brown, from some disagreeable feelings in urging a claim upon it. The sort of value, too, given by exchanging his own promissory note with Waldie, looks very like a party going through a mere form, to give himself a colourable title as indorsee.

“3d, Even since diligence was raised on the bill, the correspondence produced shows that Mr Peter Brown continues to give all directions respecting the recovery of the debt, thus showing that he is still the real creditor, or dominus of the claim.

“All concerned will do well, by mutual concessions, to stop farther expenses on the one hand, in the suspension, and, on the other hand, as to the debt, which is substantially just, subject only to a claim respecting the lost bill.”

that his Lordship's objection to the protest as having been extended in Archibald's name was not well-founded, ¹ and besides it was incompetent to found on such an objection after the reference to oath; ² and, on the merits of the reference, that Archibald was in a situation to give an effectual charge on the bill.

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¹ Allan v. Galli, June 5, 1829, ante VII., 706 (Opinions of Court.)

² Allan, supra; Mackie v. Hilliard, June 15, 1822, ante I., 499 (new ed. 464.)