Scottish Court of Session Decisions

The Lord Ordinary (Ormidale), on 30th June 1864, found that the allegations and pleas in defence, to the effect that the pursuers are not onerous and bona fide holders of the draft or order libelled on, can be competently proved by their writ or oath only. He held that such a draft must be viewed and dealt with as being of the nature of a promissory-note or inland bill of exchange, and was transferable by delivery. The defender reclaimed, and on 29th November 1864 the Inner House recalled the Lord Ordinary's interlocutor, and remitted to him, before answer, to grant a diligence for the recovery of writings. Several documents were recovered which did not materially affect the case, and the Lord Ordinary, on 27th May last, reported the case.

It was now urged for the defender that he was entitled to a proof pro ut de jure of his averments. This was resisted by the pursuers, not so much on the ground that the draft was in the same position as a bill of exchange as on the ground that it constituted an obligation in writing by the defender the effect of which he could not remove by parole evidence.

The Court was unanimously of opinion that before answer a proof should be allowed. A bank cheque was different in many respects from a bill. It did not require a negotiation, had no days of grace, was not transferable by endorsation, and did not prescribe in six years. Nor could it be said, except inferentially, that this was an obligation by the defender. It might have been, for all that appears on the face of it, a mandate to the bank to pay to the defender himself. This was the usual purpose for which bank cheques were used. If proof were refused, then any person who found a cheque might sue the drawer for payment, and compel him to pay unless non-onerosity was proved by his own oath. It might turn out in this case that the defender's statements were unfounded, but it would be satisfactory before disposing of it to know how the facts stand.