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Mr Swynton, as Factor to the Executors of the deceast William Bonnar, Clerk of the Mint v The Representatives of John Tom, Merchant in Dundee. [1709] Mor 1536 (26 January 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Mor0401536-118.html Cite as:
[1709] Mor 1536
Subject_1 BILL OF EXCHANGE. Subject_2 DIVISION IV.
Possessor's recourse against the Drawer and Indorser.
Subject_3 SECT. I.
Whether value presumed given, by the Person who holds the Bill.
Mr Swynton, as Factor to the Executors of the deceast William Bonnar, Clerk of the Mint v. The Representatives of John Tom, Merchant in Dundee
Date: 26 January 1709 Case No. No 118.
Value presumed to have been given by the possessor of an order, bearing ‘to deliver to him a certain sum, and take his receipt.’
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In the pursuit at the instance of the Executors of William Bonnar, against the Representatives of John Tom, for repetition of L. 20 Sterling intromitted with by Mr Tom, conform to his receipt, upon the following order:
“William Dippie (at length) please deliver to John Tom, bearer hereof, Twenty pounds Sterling, take his receipt, and this shall be your warrant, William Bonnar:”
Which order, the pursuer contended, was presumed to have been given to Mr Tom under trust, to receive the contents for the behoof of Mr Bonnar: Because, albeit value is presumed to be given for bills in the ordinary known style; that presumption is taken off by the extraordinary tenor of this, which, 1mo, Bears not, ‘Please to pay,’ but only, ‘Please to deliver:’ And though payment implies right in the creditor who receives it, delivery does not, but may be made for causes obliging to count, as loan, &c. 2do, The drawer orders his correspondent to take Mr Tom's receipt, which was needless for Bonnar's own security; since the simple getting up of the bill, ut instrumentum apud debitorem, was sufficient instruction of payment by the merchant law: And if a receipt was needful to Dippie, he needed not an order to look to his own security, 3tio, It bears, Deliver to John Tom, bearer, and not to him or his order: And it is a common rule, that an extraordinary clause in a writ, debet aliquid operari præter jus commune.
The Lords assoilzied the defender: Because, value is presumed to have been given by Tom, unless the contrary were proved; seeing Pay and Deliver are words promiscuously used in bills and bonds of borrowed money. And the design of taking a receipt from Tom, was both to serve for an instruction of payment against him, and for a rule of counting betwixt Dippie and Bonnar.
