Scottish Court of Session Decisions

The pursuer in this case brought an action in the Sheriff-court against the defender to recover from him, as executor of the late David Humphrey, payment of a bill for £50, granted by the latter to her, in consideration, as was alleged, of the services of her illegitimate daughter, deceased, who had acted for some years as his housekeeper. The pursuer did not aver that she herself gave any consideration for the bill, which was a regular and valid document.

The defender pleaded inter alia—“(1) No value having been given by the pursuer for the bill libelled on, or for any part of the sum specified in it, she, as drawer and holder, is not entitled to recover payment thereof from the defender. (2) The deceased David Humphrey having been under no obligation to grant said bill, and his signature having been unduly impetrated from him to it while it was in an imperfect condition, by misrepresentations as to his liability, and under improper pretences, at a time when he was of weak and facile intellect, the pursuer is further debarred from insisting in the conclusions of the present action.”

The Sheriff-Substitute ( Comrie Thomson) pronounced the following interlocutor:—

“ Aberdeen, 15 th May 1874.—Having resumed consideration of the cause, Find it proved that the deceased Mary M'Donald, an illegitimate daughter of the pursuer, was for several years in the service of the late David Humphrey. That the defender is David Humphrey's executor-dative; that at the time of Mary M'Donald's death David Humphrey was due to her a considerable sum of arrears of wages; that on her death-bed she requested Humphrey to pay what was due to her to her mother, the pursuer; that David Humphrey undertook to do so; that after her death Humphrey granted to the pursuer the bill now sued for; that he did so in implement of his foresaid undertaking: Finds, in point of law, that the defence of ‘no value’ is unfounded: Finds that the defender has failed to prove that the deceased David Humphrey was facile, or that the bill in question was fraudulently impetrated from him: Therefore repels the defences: Decerns against the defender in terms of the conclusions of the summons: Finds the pursuer entitled to expenses of process, allows an account to be given in, and when lodged remits the same to the Auditor of Court to tax and report.

Note.—It was maintained by the defender that his author, the deceased David Humphrey, was at the time the bill libelled was signed by him of weak and facile intellect, and that he would not have signed it had he known what he was about. The Sheriff-Substitute is of opinion that that defence has entirely broken down. The witnesses called to support it, and who knew the deceased intimately, concur in representing him as a strange sort of person, but they are equally unanimous in saying that he was obstinate and not easily led. The schoolmaster, who knew him well for fifteen years, depones as follows:—‘He was not of weak or facile intellect, nor by any means easily imposed upon. He transacted business like other men. I don't think he would have signed a bill unless he had been due the money.’

The genuineness of the bill, and the fact that it was truly the expression of the granter's mind, being thus established, the only other question falling to be disposed of is the defence of nononerosity. It is true that no value was given to the acceptor of the bill by the drawer. That is to say, no services were rendered by the pursuer to the defender's author. But admittedly the pursuer's daughter was entitled to the sum in the bill, and on death-bed she desired Humphrey to pay that sum to her mother, the pursuer. He promised to do so. That promise could not be enforced in a Court of law, because the pursuer was not the representative of her deceased daughter, who was illegitimate, and died intestate. But Humphrey chose of his own free will to convert what was an imperfect obligation, binding upon him morally but not legally, into a perfect obligation, and this he did by granting the bill now in question. It seems to the Sheriff-Substitute that there is here a sufficient answer to the plea of want of consideration. It has been held that value is established. although the bill was granted in implement merely of an obligation in honour, or of a debt barred by prescription, or of a natural duty, such as providing more liberally than the law requires for a wife or a child. (See Chief-Justice Mansfield's observations in Gibbs v. Merrhill, 3 Taunt 307, and also the opinion of the Judges in Seton v. Seton, 2 Brown, Ch. Cas., 616).

The present case seems to fall under the same category.

The remaining defences may be disposed of in a sentence. The body of the bill was not filled up until after the acceptor's death, but his signature was on the stamp, and he was liable for whatever the stamp would carry. Besides, the sum was expressed in figures, though not in words, on the face of the bill when the deceased signed it.”

The defender appealed to the Sheriff, who pronounced the following interlocutor:—

“ Edinburgh, 19 th June 1874.—The Sheriff having considered the reclaiming petition for the defender

Page: 117↓

against the interlocutor of 15th May last, with the record, proof, and whole process, in respect the defender has failed to prove that the bill in question was granted without consideration, dismisses the appeal, affirms the interlocutor appealed against, and decerns.”

The defender appealed.

At advising—