Scottish Court of Session Decisions

In this action the pursuers conclude for various sums which they allege are due to them by the defenders on seven different bills of exchange. The defenders called are George Thomson & Son, merchants in Aberdeen; James Chalmers and John Gray Chalmers, both printers in Aberdeen, executors of the deceased William Leslie Thomson, wine merchant and shipowner in Aberdeen, and the said James Chalmers and John Gray Chalmers as individuals. George Milne, agent of the Commercial Bank, trustee on the sequestrated estate of George Thomson, lately merchant in Aberdeen, and now furth of Scotland, is also called for any interest that he may have in the premises. The pursuers made the following statements in support of the action:—The pursuers, Messrs Catto, Thomson, & Company have for many years carried on business as rope and sail-makers in Aberdeen, and the pursuers, James Hall, William Hall, John Catto, and John Duthie junior, are now the sole partners of that firm. George Thomson, merchant in Aberdeen, was also a partner of the firm up to the date of the sequestration of his estates on 30th October 1863. The firm of George Thomson & Son had also for many years carried on business in Aberdeen as wine merchants and commission agents, and were a firm of good standing and repute. This firm had at various times consisted of different partners. Latterly, prior to 1862, the late William Leslie Thomson, wine merchant and shipowner in Aberdeen, brother of the said George Thomson, was the sole partner. He died on 29th January 1862, leaving a will dated 7th January

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1862, by which he appointed the said George Thomson and the defenders, James Chalmers and John Gray Chalmers, who were his brothers-in-law, to be his executors; and he requested them to carry on the business after his decease for behoof of his family. The said George Thomson, James Chalmers, and John Gray Chalmers accepted of the office of executors under the said will, and, in terms of the directions therein contained, they continued to carry on the business under the firm of George Thomson & Son, and of which they were the sole partners. The said George Thomson took the active management of the business. He was, and from Jauuary 1862 had been, in use to adhibit the signature of the firm to bills, cheques, and other documents of that nature, and he was duly authorised to draw and accept bills and cheques for the said firm, and to adhibit thereto the signature of the said firm. Among other documents which the said George Thomson subscribed with the Company firm were the various bills set out in the libel, which are signed by the said firm of George Thomson & Son as drawers, and bear to be accepted, per procuration of the pursuers' firm, by William Beverley, their manager. These said bills all bear ex facie to be for value received, but in reality no value was received by the pursuers for any of them, and the pursuers were not debtors to the firm of George Thomson & Son in the sums contained in any of these bills, or any part thereof.

The defenders made the following statement:—The pursuers, or the company of Catto, Thomson, & Company, by whom the bills libelled were accepted, and Mr George Thomson, who was their managing partner, and Mr Beverley, who was their managing clerk, well knew, when the said bills were respectively drawn, accepted, and discounted, that they were not drawn on behalf of the executors of the late Mr William Leslie Thomson, or of the trade or business carried on by the said executors as aforesaid, or in the course of said trade or business. They also well knew that the executors had no authority and no occasion to raise money for the purpose of said trade or business by means of accommodation bills or otherwise. They also well knew that the said bills respectively were drawn, accepted, and discounted without the authority or knowledge of the defenders, and that the defenders received no part of the proceeds.

The defenders pleaded, inter alia, that the pursuers' averments could only be proved by the writ or oath of the defenders.

The Lord Ordinary ( Kinloch) pronounced the following interlocutor:—

“ Edinburgh, 30 th January 1867.—The Lord Ordinary having heard parties' procurators, and made avizandum, and considered the process—Finds that the averment of the pursuers in regard to the bills libelled—that the same, although bearing to be drawn by George Thomson & Son, and accepted by the pursuers, are in reality obligations in which the said George Thomson & Son were the primary debtors, or of which the said George Thomson & Son were and are bound to relieve the pursuers—is an averment which can be competently proved by the writ or oath of the said George Thomson & Son only; and in respect that the pursuers have not adduced or offered evidence by the writ of the said George Thomson & Son to instruct the averment, assoilzies the defenders from the conclusions of the action, and decerns, reserving to the pursuers all competent reference to oath: Finds the pursuers liable in expenses; allows an account thereof to be lodged, and remits to the auditor to tax the same and to report.

W. Penney.

Note.—The bills libelled are ex facie obligations by the pursuers to George Thomson & Son. To throw on George Thomson & Son, contrary to the terms of the bills, the burden of the obligations, requires that the alleged liability should be established by their writ or oath.

The pursuers obtained a diligence under which they recovered the books and documents of George Thomson & Son. The writings recovered did not establish the averment. At the debate they sought another diligence in order to recover the books and documents of George Thomson as an individual, but these would not be the writ of George Thomson & Son. At the best, they would only be George Thomson's parole testimony expressed in writing. They might bind George Thomson individually, but George Thomson is not a defender concluded against in the present process. The Lord Ordinary did not feel himself warranted to grant such a diligence, and no other documents being specified which could come under the description of the writ of George Thomson & Son, he considered that he was bound to grant absolvitor to the defenders. The pursuers will, of course, still have open to them the recourse of a reference to oath.

(Intd.) W. P.”

The pursuers reclaimed. The following is the prayer of the reclaiming note:—“May it therefore please your Lordships to recal the interlocutor complained of; to repel the second plea in law for the defenders, and find that the pursuers are entitled to a proof of their averments prout de jure, and to remit the cause to the Lord Ordinary to proceed further therein as may be proper; or at least to find that the pursuers have offered evidence by the writ of the defenders to instruct their averments, and to remit the cause to the Lord Ordinary to proceed further therein as may be proper; also to find the pursuers entitled to expenses; or to do otherwise in the premises as to your Lordships may seem just.”

Clark and Harry Smith for them.

Young and Shand in answer.

The following cases and authorities were relied on— Blackwood v. Hay, 19th July 1858, 20 D., 631; Lockhart v. Henry, 5 D., 1014; Clark on Partnership, vol. i, p. 215; Linley i, 213, 16.