Scottish Court of Session Decisions

Subject_1 BILL OF EXCHANGE.
Subject_2 DIVISION III.

Acceptor's Recourse against the Drawer.

George Wilson of Sands
v.
George M'Kenzie in Stonchive

Date: 10 July 1712
Case No. No 115a.

Found in conformity with the above, that value is not presumed to be in the acceptor's hands, unless exprest.

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George Wilson insisted against George M'Kenzie, for re-payment of L.60 contained in a bill drawn by George M'Kenzie, and directed upon Alexander Deuchar and George Wilson, payable to John Campbell, Deuchar's servant, and: indorsed by him to the Treasurer of the Bank, who got payment thereof from George Wilson.

Alleged for the defender: He cannot be liable to this action of recourse; because, 1mo, The bill was drawn by him only upon Alexander Deuchar, as a fund of credit to negotiate as he best could for his own behoof; and the security being refused, when offered to the Bank, so directed and singly accepted by him, George Wilson's name was thereafter added to the direction by Deuchar, who prevailed with Wilson to accept the bill conjunctly and severally with him, upon his giving back-bond to Wilson to relieve him of all hazard from his acceptance; and Deuchar, by his servant's indorsing the bill thus accepted to the Treasurer of the Bank, got up the money; so that the defender had nothing to do with Wilson, who accepted not by any order from him, but upon the faith of Deuchar's obligement of relief. 2do, As when a bill bears not an ordered place the value to the drawer's account, (in which case the account is the rule) nor an order to pay as per advice, (in which case the letter of advice regulates) there is no recourse competent to the acceptor paying, against the drawer; so when a bill is drawn, without bearing value in the hand of the person drawn upon, if he design to have recourse; he Suffers the bill to be protested for not acceptance, and then accepts it for the honour of the drawer; but if he simply accept, the presumption lies against him, that value was in his hand, and he cannot recur against the drawer. 3tio, ’Tis clear by a Signed declaration of eleven knowing merchants, that when a bill is drawn upon two persons, accepting conjunctly and severally, though it do not bear value in the acceptor's hands, one of the acceptor's paying hath no recourse against the drawer; if he, the drawer, can qualify and instruct that he had value in the hands of the other acceptor: Now it is acknowledged, that value was in Deuchar's hand; for he received the money from the Bank, and his bond of relief to Wilson acknowledgeth the same.

Replied for the pursuer: 1mo, The want of a direction on the bill to Wilson, when first presented to the Bank, signifies nothing; for it is presumed to have been added of consent ex post facto, since the bill bears it so; and in re veritate it was added by M'Kenzie's own consent. 2do, Though there had been no direction to Wilson, yet the defender is liable in repetition, because causam damno dedit, by his implicitly trusting Deuchar with the bill. 3tio, Whatever respect may be had to the judgment of knowing merchants, more is due in this point to the decisions and opinions of Judges and Lawyers. The contract here betwixt the drawer and acceptor is mandatum; and that betwixt the drawer and the creditor is mutuum. So that were a mandate given to two persons conjunctly to manage the constituent's business, would any exception competent to the constituent against the one mandatary, be competent against the other? No Sure, Arg. l. 27. ff. de Pactis. l. 10. ff. de duob. reis; and yet this is all the import of the drawer's defence. This bill, in so far as concerns the pursuer, being truly a mandate causa mandantis, and for Deuchar; both stood obliged to the pursuer. 4to, As it would have been no good argument to George M'Kenzie, against the bank who advanced the money to Deuchar upon the faith of the bill, that Deuchar got the money; no more can it be obtruded against Wilson, who, by repaying the money to the bank, came in their right and place: Yea, Alexander Deuchar's getting the money from the bank upon the credit of the defender's bill, is so far from bearing any colour of defence for M'Kenzie, that it is a strong reason why he ought to refund the money to the pursuer.

The Lords found the allegeance, viz. That Alexander Deuchar signified to George M'Kenzie the defender, that the bank refused the bill, unless they got a co-acceptor, and that the defender consented that the pursuer should be added relevant by the defender's oath of verity, to give the pursuer recourse; and in case the defender depone negative, then found, That the pursuer having accepted upon the faith of M'Kenzie the drawer, and Alexander Deuchar being bankrupt, George Wilson and M'Kenzie must be reputed tanquam correi promittendi and the Sum equally divided betwixt them; and ordained the pursuer to assign to the defender the half of the heritable bond of relief he got from Deuchar. See No 72. p. 1481.

Fol. Dic. v. 1. p. 99. Forbes, p. 616.