Scottish Court of Session Decisions

Subject_1 SOLIDUM ET PRO RATA.
Subject_2 SECT. XII.

Conjunct Acceptors or Drawers of a Bill.

James Gordon, Merchant in Stromness,
v.
John Sutherland, Merchant in Wick

Date: 20 January 1761
Case No. No. 57.

Where a bill is addressed to more persons than one, each by his acceptance becomesliable in solidum.

Click here to view a pdf copy of this documet : PDF Copy

John Sutherland and John Milliken made a joint purchase, from James Gordon, of rum, to the value of £.83 1s. 3d. for which they granted receipt, and the price was payable in four months thereafter.

This receipt was indorsed to James Stewart, writer in Edinburgh, with an order to pay the price to him.

John Sutherland having come to Edinburgh soon after the term of payment was elapsed, Mr. Stewart took a bill in place of the money, which then ought to have been paid.

This bill was addressed to John Sutherland and John Milliken, merchants in Wick, and was accepted by John Sutherland. The body of the bill and the address were written by John Sutherland; and it appeared that there was added to the address, the words conjunctly and severally, in the hand-writing of James Stewart.

John Sutherland alleged, That this addition had been made by James Stewart ex post facto; and Stewart insisted, that the addition was made before Sutherland subscribed. Milliken having become insolvent, diligence was raised upon this bill in name of James Gordon, the original creditor to whom it was assigned. A suspension of the charge was obtained by Sutherland; and the Lord Ordinary, upon the 12th February, 1760, “repelled the reasons of suspension, found the letters orderly proceeded, and decerned.”

Pleaded in a reclaiming petition for the suspender: 1mo, That this addition and superinduction, made to the bill after it was signed by the petitioner, and out of his hands, imports such a vitium reale as to render it totally null. 2do, That if the bill had been accepted by Milliken, as was manifestly intended, the suspender would only have been liable for his half of the contents; and therefore the loss arising through Milliken's supervening bankruptcy, and the charger's neglecting to procure his acceptance of said bill, was no just cause for throwing that loss upon the suspender.

Answered for the charger: 1mo, It is not true, that the addition was made ex post facto. It was made in presence of Sutherland himself, previous to his acceptance; and this he himself had formerly acknowledged, in an answer to a protest taken against him by the charger's messenger. But, even supposing the addition to have been made ex post facto, it was perfectly innocent; as no point is better established, than that every acceptor of a bill is liable in solidum, whether the words “conjunctly and severally” are added to the address or not.

2do, It was not the charger's business to obtain Milliken's acceptance; and it cannot be doubted, that if a bill was addressed to twenty persons, every one becomes bound in solidum by his own acceptance; and the creditor has no further concern, if he chooses to rest upon the security granted by the acceptance of one or more: They must themselves provide for their mutual relief against each other.

“The Lords adhered.”

Act. Garden. Alt. Lockhart. Fol. Dic. v. 4. p. 296. Fac. Coll. No. 7. p. 11.