Scottish Court of Session Decisions

Subject_1 PROMISSORY NOTE.

Mr Alexander Arbuthnot, Factor to Messrs Burgh and Arnold, Merchants in London,
v.
Walter Scot, Merchant in Kelso

Date: 29 January 1708
Case No. No 1.

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

Walter Scot having by his note, obliged himself to pay to Messrs Burgh and Arnold, or order, L. 15 Sterling, at London, or at Edinburgh, with the current exchange, and the note being indorsed to Mr Arbuthnot, who pursued Scot for payment; the Lords found, That it was not of the nature of a bill of exchange, nor did partake of the privileges thereof, but was a simple ticket, in respect there was not a drawer and accepter; and therefore found the same null and not probative for want of the names and designations of writer and witnesses.

Fol. Dic. v. 2. p. 211. Forbes, p. 233. *** Fountainhall reports this case:

Walter Scot, merchant, in Kelso, grants an obligation to Messrs Burgh and Arnold, citizens in London, and their order, L. 15 Sterling, payable in the city of London, six months after its date, or at Edinburgh with exchange. This note is indorsed to Alexander Arbuthnot, merchant in Montrose, who pursuing Scot for payment, he objected the bond was null, neither designing writer nor witnesses, and being since the 5th act of Parliament 1681, is not suppliable now by a condescendence; and though they offer to prove the verity of his subscription by his oath, yet that is noways relevant, unless they likewise refer the verity of the debt, and that it is yet resting owing, to his oath, and the same having lately occurred betwixt William Chatto and Park, an Englishman, the Lords found the ticket null. Answered, This obligation was of the nature of a bill of exchange, which requires none of those solemnities of writer and witnesses, but are simple writs regulated jure gentium, and the custom of merchants, both the parties here being such; and it is indorsed on the back without any formal assignation, which shews the parties looked upon it as a bill. Replied, This note has neither the stile of a foreign nor inland bill, and could never have been protested and registered for not acceptance; and though it mentions the same being payable to the party or his order, and with exchange, yet many bonds run in that same mixed kind of stile. The Lords observed, That bills are exposed to much hazard of forgery, therefore their privileges were not to be extended, and found this was only a ticket, and could not claim the privileges, either as to the want of solemnities or summary execution, that bills have; only, it appearing to be all of one hand-writ and contexture, they ordained the parties to be heard if it was holograph, in which case it would be probative, though it wanted witnesses, if they offered to prove it was holograph.

Fountainhall, v. 2. p. 424.