Scottish Court of Session Decisions

This was an appeal against the judgment of the Sheriff of Perthshire in an action at the instance of the testamentary trustees of the late Robert Kennedy, distiller, Ballechin, Strathtay, who sought to recover from the truster's nephew James Kennedy the sum of £168, ls. 2d., the amount of a bill drawn by the trustees and accepted by his nephew, the defender. The bill sued upon was found in the repositories of the truster after his death, and this action was raised close upon the time when the sexennial prescription would apply to it.

The defender averred that the truster owed him sums of money for work done under his employment, that he was disinclined to pay these debts in cash, but that in order to discharge his liabilities in part he drew the bill in question which was accepted by the defender and discounted by him, and thereafter, when it fell due, was retired by the truster, and the debt due to the defender was thus pro tanto discharged; further that the bill was not intended to create a debt against the defender, and that he could not therefore be made liable for its contents.

The Sheriff-Substitute ( Barclay) allowed a proof at large that the bill sued for was not granted for value, or imposed on the defender an obligation for the sum therein. This judgment was however recalled by the Sheriff-Principal ( Macdonald, Q.C.), who found that the defender's averment could only be proved by writ or oath of party. On appeal the Court affirmed the Sheriff's judgment and dismissed the appeal with expenses.