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SCOTTISH_HoL_JURY_COURT

Page: 499↓

(1724) Robertson 499

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

Case 112.

Thomas Paterson, Esq. Appellant

v.

Archibald Ogilvie, and Anthony Murray, Esq. Respondents

20th April 1724.

Subject_Process — Qualified Condescendance. —

In the reduction of a bond, bearing to be for money lent, for want of an onerous cause, the defender acknowledges that the consideration was the future transfer of South Sea stock, and states that such transfer was afterwards made accordingly to the pursuer's order. This quality in the condescendance did not prove against the pursuers.

Subject_South Sea Company. —

Act. 7. G. 1. stat 2.

Subject_Foreign. —

It was no nullity in a bond that it was executed in England, in the Scotch form.

Subject_Costs. —

An Affirmance with 40l. costs to one respondent.

On the 15th of August 1720, the respondents agreed to purchase from the appellant 1000 l. South Sea stock, with the Midsummer dividend at 1150 l. per cent, and the appellant gave to each of the respondents a note, obliging himself to transfer to each of them 500 l. South Sea stock, with the Midsummer dividend, as soon as the books of the said company opened; and the respondents executed a bond in the Scots form to the appellant for 11,500 l. bearing to be for money lent and advanced, payable on the 25th of March then next.

Disputes afterwards arising relative to this bond, the appellant on the 28th of September, raised and executed letters of inhibition in Scotland against both the respondents. In November following a bill was exhibited in their names in the Court of Chancery, against the appellant relative to this bond, and the South Sea stock; but they afterwards obtained an order to amend their bill, and soon after they took an order to dismiss the same.

The respondents thereupon brought an action against the appellant before the Court of Session to reduce and set aside the said bond, as being without an onerous cause; for that the stock which was to have been transferred by the appellant, and which was the only consideration of the bond never was transferred to them or their order. The Lord Ordinary on the 29th of July 1721, ordered both parties to condescend upon the facts in the case.

In obedience to this order, the appellant stated, that the true cause of the granting and delivery of the bond craved to be reduced was his granting and delivering to each of the pursuers an obligatory note for transferring to each of them 500 l. South Sea stock, with the Midsummer dividend, which notes were granted in respect the books were then shut; and which 1000 l. was accordingly on or about the 26th of August 1720, transferred to the pursuers their order respective, viz. to Mr. Powell of the South Sea Company; and that one of the pursuers having brought to the defender a permit for transferring the said stock to Mr. Powell, upon a loan of 4000 l. he at their desire did accordingly transfer the same, and received the said 4000 l. and at their desire, applied the same as

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follows, viz. at the desire of Mr. Ogilvie 2000 l. to the credit of Captain Abercromby's account with the defender; and at the desire of Mr. Murray, the other 2000 l. was applied to Mr. Murray's own credit, in part of a note for 15,925 l. due by him to the said defender; with which transfer and application of the 4000 l., the pursuers were so fully satisfied, that Mr. Ogilvie gave up to the defender the note, obliging him to transfer 500 l. of the said stock to him; and Mr. Murray was content to have done the same, but declared he had lost his pocket book, and in it the said note. And the defender's procurators further declared that the Midsummer dividend was still ready to be transferred by the defender to the pursuers. And they stated that they made that acknowledgement under protestation, that the same should not be disjoined or separated, but that the same, and every part of it should be understood and received as the true matter of fact, which passed between the pursuer and defender, on which he was willing to make oath.

The respondents on the other hand jointly declared, that at the opening of the books, they concerted that they should cause transfer their two sums of 500 l. stock to Colonel Francis Farquhar for their joint behoofs; but denied that such stock was transferred by their order, or with their approbation to Mr. Powell, for obtaining a loan of 4000 l. Mr. Ogilvie acknowledged that the said obligatory note, granted by the defender to him, was retired by him to the defender upon verbal assurance that he had transferred to Colonel Farquhar for his behoof the said 500 l. stock, which he afterwards discovered never to have been transferred either to Colonel Farquhar, or any other person having power from him.

The Court having upon the petition of the respondents directed the appellant to make answer to several other facts then charged by them, the appellant's procurators acknowledged that between the 22d of August 1720, and the 29th, the day of making the transferance to Powell on their behalf, he, the appellant, had made further transferance on the loan of 5000 l. South Sea stock to Mr. Powell; that the loan stood charged on the appellant's account in the company's books, neither did they know of any document, or legal evidence for making it appear, that the said stock or the reversion thereof was truly veiled in the pursuers, so as that they had access to redeem and sell, or dispose of it upon payment of the loan; and that the same was in trust in the appellants person, wherewith the respondents were satisfied when Mr. Ogilvie delivered up the note to the appellant; and that the appellant was always ready to deliver to the respondents an order on the treasurer of the South Sea Company, to entitle them to redeem the said stock, but the same was never demanded.

Thus far the respondents proceeded jointly in this action of reduction; but the respondent Murray who was indebted in a large sum of money to the appellant, having made some agreement with him, ordered the action to be deserted on his part.

After this the respondent Ogilvie proceeded in the action for himself, and prayed that the appellant should be ordered to condescend

Page: 501↓

upon what stock he was entitled to in his own right on the 15th of August 1720, or within six days thereafter. The Lord Ordinary made such order accordingly, and the appellant offered in general terms to prove that at the time of the sale he was entitled to a much greater quantity of stock than he sold to the respondents, but he declined to set forth an account of all his transactions as unreasonable.

Upon hearing the cause, the respondent insisted upon these grounds of reduction, 1st, that the bond was null, having been executed in England, in the Scotch form. 2dly, That the bond was granted without a valuable consideration. 3dly, That in terms of the act of parliament 7 Geo. 1. statute 2. it was void, the appellant not being possessed of, or entitled to the stock in terms of the act. And 4thly, That the contract being unperformed on the 29th of September, 1721, in terms also of said act ought to have been registered, which it was not, and that therefore the same was void and null. After a hearing upon these points, the Court on the 1st of Feburary 1724, “repelled the reason of reduction, that the bond was executed in England, after the Scots form; but found that the cause of granting the bond craved to be reduced, was the defender's obligatory note, for transferring to the pursuer Ogilvie 500 l. capital South Sea stock, with the Midsummer dividend; and that the defender's declaration of the special fact does not qualify or prove that a transfer was accordingly made, or that any benefit did accrue to the pursuer for the 500 l. stock which ought to have been transferred: and also found that the contract not having been performed, ought to have been registered, conformably to the act of Parliament; and also found, that the defender not having given in a special condescendance of any stock in his person, at the date of the bond, nor within six days thereafter, he is presumed to have had none.”

Entered 13 Feb. 1723–4.

The appeal was brought from “part of an interlocutory sentence or decree of the Lords of Session, made the 1st day of February 1724.”

Heads of the Appellant's Argument.

As the only proof made use of to set aside the bond in question was the acknowledgment of the appellant, that it was given in consideration of an agreement for the sale of stock; so if the respondents would take any benefit from that acknowledgement they must take it altogether, and admit that part likewise to be true which mentions that the stock was transferred to their order. If the respondents have taken this as their only proof, it would be extremely hard upon the appellant, if one part of the proof were to be supported, and the other not, especially in a case where there were no parties to the real transaction, but the appellant and respondents. The actual transfer of the stock to the order of the respondents appears also by the circumstance of the respondent Ogilvie's delivering up to the appellant his obligatory note, which was his security for the transfer of the stock, and the consideration for granting the bond. And the respondent Murray would have done the same, had he not loft his pocket book and the note in it.

Page: 502↓

The counter allegations of the respondent Ogilvie ought not to have been taken as true, without proof.

This transfer, like all others upon loans, was made absolutely, without any power of redemption expressed; but these transfers being made to an officer named for that purpose, a retransfer would have been made at any time upon payment of the money. The appellant was always ready to have given the respondents any declaration, if they had desired it, that the stock was theirs, but they never did.

With regard to the objections upon the act of parliament, that the transaction was not completed, the appellant transferred what he was desired to do; and he always was willing upon payment of what was due to him upon the bond, to transfer the Midsummer dividend upon said stock, and all the profits thereof to the respondents. But since the respondents gave the appellant a bond for the payment of a certain sum of money, though that bond was given in consideration of notes to transfer stock, yet there could be no occasion to register the same; for nothing is required by the act to be registered but contracts for the sale of stock, which in no sense a bond for payment of money was; and especially since before that act, the appellant had performed his part and transferred the stock. For the same reason the appellant was not obliged to make it appear, that he was possessed of stock at the time of granting the bond, or six days after. He was ready to prove that at the time he was entitled to a much greater quantity of stock, but he declined to give any account of his particular circumstances, as he apprehends he might justly do.

Heads of the Respondent Ogilvie's Argument.

The consession of a party would be entirely useless, if he were permitted to add other facts foreign to the question, and that those facts should be taken to be true upon his bare allegation. In this case the appellant acknowledged, that though the bond was expressed to be for money lent, yet it was really given for stock, to be transferred at a future time; and this must be taken to be true. But he must prove that the stock was actually transferred. As he hath set forth the matter, several facts must be admitted instead of being proved, first that the respondent ordered him to transfer the stock to Powell; 2dly, That he ordered him to borrow and receive the money upon it; and 3dly, That he ordered him to apply that money to his own use, in discharge of a debt due to him from another person. And after all the appellant admits that the respondent could not have redeemed the stock if it had risen, without an order from the appellant, and which never was given; nor does he pretend that he gave the respondent any note, or receipt whereby the latter might charge Captain Abercromby with the 2000 l.

The respondent's note was gained from him by surprize, upon the appellant's affirming that he had transferred the stock to Colonel Farquhar, which was not true; and it is contrary to all law, that any one should profit by his own deceit.

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It appears even from the appellant's own shewing, that the contract was not performed; for he admits, that he transferred the stock to Powell, not in trust for the respondent but for himself and that part of the stock, viz. 100 l. was never transferred at all; and as to the other part of the contract, viz. the payment of the money, it is so far from being performed, that the appellant's action is to have a performance of it, and therefore it is plainly within the act, and is void, not having been registered. And as the appellant declined condescending upon what stock he had, it must be held that he had none, and so the contract; was also void by the act, on that account.

Judgment, 20 April 1724.

After hearing counsel It is ordered and adjudged that the petition and appeal be dismissed, and that so much of the interlocutory sentence or decree as is therein complained of be affirmed; and it is further ordered, that the appellant do pay, or cause to be paid to the respondent Archd. Ogilvie the sum of 401. for his costs in respect of the said appeal.

Counsel: For Appellant, P. Yorke. Dun. Forbes. Will. Hamilton.
For Respondent Ogilvie, C. Wearg. C. Talbot.

The respondent Murray in this case, put in a long and special answer, mentioning that the condescendance appearing in his name in Scotland, had been put in without his knowledge or consent.

1724