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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> M'Nab v. Telfer. [1821] ScotJCR 2_Murray_479 (18 June 1821)
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Cite as: [1821] ScotJCR 2_Murray_479
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SCOTTISH_HoL_JURY_COURT
Page: 479↓
(1821) 2 Murray 479
CASES TRIED IN THE JURY COURT.
No. 65.
v.
PRESENT, LORDS CHIEF COMMISSIONER AND PITMILLY.
A bill found to be a fictitious document, but that it was not represented at the time of delivery, as good and sufficient.
Suspension of a threatened charge on a bill
Page: 480↓
“1 st, Whether the bill in process, dated 20th May 1819, for L.66. 12s. purporting to be drawn by Joseph Johnstone, and to be accepted by John Campbell, Preses of the Society of Grocers and Spirit-dealers at Dairy, in the county of Ayr, which bill is admitted by the defender to have been the value given by the said Joseph Johnstone to the pursuers, in return for the bill charged on; was a fictitious and false document, in respect there was no such person as John Campbell, the supposed acceptor, and no such company as the Society of Grocers and Spirit-dealers at Dairy aforesaid?
2 d, Whether, at the time the pursuers received the said bill, dated the 20th May 1819, the defender represented to them that the said bill was a good and sufficient or genuine document?
3 d, Whether, at the same time the pursuers received the said bill, dated the 20th May 1819, the defender knew or believed
Page: 481↓
Incompetent to prove, by parol evidence, who accepted a bill.
A witness having stated that he had formerly discounted with a bank, a bill which he got from the defender, and which not being paid, the defender promised to take up from the bank, was asked by whom the bill was accepted.
Cockburn, for the defender—Objected.
Lord Chief Commissioner.—Was any notice given to the defender to produce this bill? If notice was given, or if it is proved that the bill is lost, this may be competent, but not otherwise. I have no objection, however, to take the evidence that the defender retired the bill; but I cannot take parol evidence of who accepted it.
Jeffrey opened the case for the pursuer, and stated—The question here is, whether there was no value given for the bill in question, and whether the pursuer was by fraud induced to put his name on it. We shall prove that Telfer knew that this was a forgery. This is not a question for punishment, but resisting an attempt to recover
Page: 482↓
Cockburn, for the defender.—The observations and evidence do not apply to the Issue. The pursuer has undertaken the proof of a transportable felony. Even in the civil question, the presumption of innocence applies, and you must have direct proof of the crime. We are not here to try or form any opinion on the question of value.
On the second Issue there must be a verdict for the defender. There is no evidence of any representations by him.
On the third the pursuer makes his stand; but the evidence does not apply; for the witnesses, though they disputed Johnston's solvency, never suspected forgery.
Lord Chief Commissioner.—The case has been closed without any evidence for the defender, and none was necessary. It is quite true that we are only to find the fact; and a distinct answer to the questions in the Issues is all that is necessary, as the case is not final here.
There is no difficulty on the first Issue, as it is admitted that the bill is a fictitious document;
Page: 483↓
The Issue is inaccurate in not stating the date of the transaction, which I shall state as the 14th August 1819; and the time is material, as the question is, whether at that time the defender knew that this was fictitious. There is no doubt of what has been stated, that fraud must be proved, and is not to be presumed; but it is also clear, that being of a secret nature, direct evidence is not to be expected, but it is to be inferred from facts and circumstances.
After stating the evidence on the second and third Issues, his Lordship said—That if the Jury took the same view of the evidence with him, they would find for the defender on the second Issue; and that on the third, they must consider whether the statement, that “things were not in a right course with Johnston,” applied to his credit, or his conduct relative to this transaction.
Verdict.—“The Jury found the bill a fictitious document: That the defender did not represent it as a good and sufficient document: That it was not proven that he
Page: 484↓
Counsel:
Jeffrey and
M'Neill for the Pursuer.
Cockburn and
Anderson Blair for the Defender.
Solicitors: (Agents, D. Mactavish, w. s. and Thomas Cranstoun, w. s.)