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Cite as: [1830] ScotJCR 5_Murray_337

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SCOTTISH_HoL_JURY_COURT

Page: 337↓

(1830) 5 Murray 337

CASES tried in THE JURY COURT, 1828 to 1830.

No. 43

Dougall

v.

Renfrewshire Bank.

1830. July 26.

PRESENT, LORDS CHIEF COMMISSIONER AND Mackenzie.

An heir claiming from a banker a sum of money paid on an unstamped order by his ancestor, must prove that the banker knew that the place at which the order was dated was more than ten miles from the bank.

This was a multiplepoinding brought in name of the defenders for the purpose of trying the validity of an order, without a stamp, granted by the late Captain Dougall for the sum of L.900.

ISSUE.

“It being admitted that the pursuers are representatives of the late Captain James Dougall of Gourock,—

Whether, on or about the 28th day of July 1827, there was, in the bank of the defenders at Greenock, on deposit-account, the sum of L.900, the property of the late Captain James Dougall; and whether the defenders are indebted, and resting owing to the pursuers in the said sum of L.900?

Wood opened for the pursuer and said,—The question is, whether the defenders are due L.900 which they paid on an unstamped order,

Page: 338↓

dated more than ten miles from their place of business. By 55 Geo. III. c. 184. § 2, such an order is declared null, and we are entitled to payment, unless the Bank discharge themselves.

Hope, Sol.-Gen.—This is a question on the construction of the statute, and we wish the opinion of the Court on the first and second sections. We do not admit, that giving the money on this order was payment.

Lord Chief Commissioner.—Does not the case depend on the scienter? In considering it, my attention was drawn to § 13, which refers to an order known to be issued beyond the ten miles.

Jeffrey, D. F.—They state that this is a document requiring a stamp, and that it is not stamped. If any question is to be raised as to the payment of the money, I must then withdraw my admission that it was in the Bank. But they admit on record that it was paid, and are not entitled to cavil as to there being no voucher. They wish to drop § 13 of the statute.

Lord Chief Commissioner.—It appears to

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me, that the question is for paying the money on an order without a stamp; that the Bank paid in their own wrong; and that the pursuers were entitled to claim as if the money was still in the Bank. The defence of the Bank is, that, though beyond the ten miles, they did not know it.

The two questions are, Whether this is a probative istrument? And Whether, if probative, the Bank knew it to be dated more than ten miles from their place of business? On the first I am bound to decide on the view of it, that this is a probative instrument without a stamp, and having it before us, we get to the other question.

The pursuer failed to prove the knowledge of the Bank, and gave up the case.

Verdict—For the defender.

Counsel: Hope, Sol.-Gen., and A. Wood, for the Pursuer,
Jeffrey, D. F., Robertson, Scott, Dunlop, and Aytoun for the Defender.

Solicitors: (Agents, Robert Welsh, s. s. c. Pearson, Wilkie, and Robertson, w. s.)

1830

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