Scottish Court of Session Decisions

This suit arose on a petition to the Sheriff of Midlothian at the instance of Thomas Wilson, Edinburgh, with consent of William Wight, accountant, Edinburgh, for his interest, against Robert and Andrew Scott, provision merchants, Leith, and A. D. Murphy, solicitor, Leith, for delivery of a bill of exchange for forty-five pounds. The bill in question was dated 24th October 1873, and was drawn by the petitioner Thomas Wilson upon and accepted by J. Jenkinson, farmer near Haddington, and was payable three months after date, and it was endorsed by the petitioner and William Wight. The statement of the petitioners was that the bill was received “from the said William Wight by the said Andrew Scott on the 28th October 1873, for the special purpose of procuring the same discounted at the bank (chiefly for behoof of the petitioner, to enable him to carry on his business), live pounds meantime of the proceeds thereof being retained by the said Andrew Scott and placed to the credit of the petitioner in account with the said firm of Robert & Andrew Scott, and the balance of forty pounds, less discount, to be handed over to the said William Wight for behoof of the petitioner, and which bill, if not so discounted, was to be returned to the said William Wight the day following, namely, 29th October 1873: That, notwithstanding said arrangement, the said Andrew Scott, or his said firm, have parted with the said bill to the said A D Murphy, and they, and each and all of them, refuse to restore the said bill to the petitioner or the said William Wight.”

On the other hand, the respondents stated that in September 1873 they employed Murphy to raise an action against Wilson for £52 due to them by him. This action was not prosecuted in consequence of the following agreement made by the petitioner with them:—

“25 th September 1873.—Sirs,—I herely offer you £5 stg. cash down, £5 within a fortnight, and £5 per month after that date until your account be discharged. This without prejudice any way to me, and subject to deductions from the account. You at once withdraw the arrestments used on my funds.—Yours truly, per Thomas Wilson,

W. Wight.

Leith, 26 th September 1873.—Dear Sir,—Messrs R. & A. Scott have handed me the offer made by you on behalf of Mr Wilson, as to the liquidation of their account. I understand my clients have

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accepted that offer on the footing that the expenses incurred to me will be paid by Mr Wilson.

In consequence of this arrangement, I shall delay calling the summons, provided you agree not to put up protestation to give Mr Wilson every facility in carrying out the terms of the arrangement; but in the event of Mr Wilson falling into arrear with his instalments, I shall at once proceed to obtain decree.—I am, &c.,

per A. D. Murphy.

James Philp.”

The first instalment of £5 was paid, but no other payment was made. On 27th October 1873 the respondent sent up a clerk to Mr Wight for a payment to account, but instead of getting any money he was desired to ask Mr Scott to call for Mr Wight as he had a bill for them. Mr Andrew Scott, the junior partner, accordingly called for Mr Wight, who handed him the bill referred to in the petition, toward payment of his firm's claim against Mr Wilson, and which bill the respondent is entitled to retain. The amount still due to Messrs Scott, exclusive of interest and expenses, is £48—£3 more than the amount of the bill. No such arrangement or understanding was come to at the meeting Mr Andrew Scott had with Mr Wight such as that mentioned in the petition. The said bill is in the hands of Mr Murphy simply as agent or the present respondents.

It appeared that subsequently the bill had been discounted by the Scotts, was dishonoured by Jenkinson, and was paid by the Scotts.

The Sheriff-Substitute pronounced the following interlocutor:—

“ Edinburgh, 27 th January 1874.—The Sheriff-Substitute having heard counsel for the petitioners and the solicitors for the respondents, considered the proof and whole cause, decerns and ordains the respondents Robert and Andrew Scott as a company, and Andrew Scott, a partner thereof, as an individual, to deliver up to the petitioner, or William Wight, accountant, Edinburgh, the bill of exchange mentioned in the petition, and failing their doing so within eight days, decerns and ordains the respondents to pay to the petitioner the sum of forty pounds sterling as the balance of the contents of the said bill, reserving to the petitioners any claim for loss or damage which they may have, and to the respondents their defences as accords; Finds the said respondents liable in expenses, allows an account thereof to be lodged for taxation, and remits to Mr Robert Barclay Selby, solicitor, to tax and report.

Note.—There is no doubt in the general case the holder of a bill of exchange is entitled to the presumption of having given value, and that he holds it for a special purpose or under a limited title can in general be proved only by his writ or oath. There are cases, however, where the proof will not be so restricted, and the present, it is thought, may fairly be placed in that category. Mathieson v. Anderson, 12th June 1822, 1 S. 486; Haigs & Buchanan, 25th June 1823, 2 S. 412; Borthwick, 22d December 1833, 12 S. 121; and Smith v. Stark, 16th December 1831, 10 S. 150. It is not pretended that any present value was given when the bill was got; far less can it be alleged that the indorser, from whom it was obtained, had any transaction with, or was in any degree indebted to, Messrs Scott. In the light of the surrounding circumstances, it is very difficult to believe that Wight, who had no interest whatever in the transactions, would, after having endorsed it, and made himself liable as an acceptor, hand over the bill to Scott except for the limited purpose which he states. All the claim the respondents then had was for an instalment of £5 of the debt due them by Wilson. The proof is perhaps not so satisfactory as could have been desired, but on the whole the version of the transaction given by the petitioners is the one which the Sheriff-Substitute is inclined to believe. It is possible the respondents thought that having obtained the bill by fair or unfair means they were justified in appropriating it, but such a view of mercantile dealing ought not to be countenanced.

It was unnecessary to call Mr Murphy as a party, and it was equally unnecessary for him to make a separate appearance.”

On appeal, the Sheriff pronounced the following interlocutor:—

“ Edinburgh, 22 d April 1874.—The Sheriff having considered the appeal for the respondents, with the proof and whole process, and heard parties' procurators, dismisses the said appeal, adheres to the interlocutor appealed against, assoilzies the respondent A. D. Murphy, and finds him entitled to the expense of entering appearance: Finds the respondents Robert and Andrew Scott liable in additional expenses, and decerns.

Note.—It is right to assoilzie Murphy; but as there was no necessity for a separate appearance by him, he is not entitled to greater expenses than have been awarded.

The Sheriff is of opinion that the petitioners are entitled to prove otherwise than by the writ or oath of the respondent the distinct averment they have made; and on the evidence he has no hesitation in holding they have proved their case.”

The respondent appealed.

Authorities cited— Mathieson, 12 S. 486; Borthwick, 12 S. 121; Haigs, 2 S. 412; Smith, 10 S. 150.

At advising—