Scottish Court of Session Decisions

Subject_1 BILL OF EXCHANGE.
Subject_2 DIVISION I.

Of the Object, Nature, and Requisites of Bills.
Subject_3 SECT. II.

Nature of a Bill.

Patrick, Viscount of Garnock
v.
The Duke of Queensberry

1721. February.
Case No. No 5.

An obligation to pay 10s. per diem until the person shall be provided with a company in the army, conceived in the form a bill, found null.

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James, Duke of Queensberry, deceased, did, in June 1708, draw a bill on David Earl of Glasgow, of the following tenor:

“My Lord, Be pleased to advance to John, Viscount of Garnock, upon the account, and for the use of Patrick, Master of Garnock, his eldest son, ten shillings per diem, commencing from the first of June instant; and that ay and while the said Patrick, Master of Garnock, be provided with a company in her Majesty's forces. This from, my Lord, your humble servant,

Queensberry.”

On this title the said Patrick; Viscount of Garnock, pursues his Grace the Duke of Queensberry, as representing the late Duke his father, for the sum of 10s. per diem, since the first of June 1708, and in time coming, until he be provided with a company in the forces; and for damages for non-performance.

The defence was, That this is no proper bill, and therefore must fall, as wanting writer's name and witnesses. And it was contended, That it is not every writing that hath a drawer, a person on whom it is drawn, and a creditor, that can be reckoned to have the privileges of a bill; which will be plain, by reflecting, that the only reason why these privileges are indulged to bills, proceeds from this, that they are looked upon as bags of money, passing from hand to hand, as a necessary medium of trade. If then it appear from the deed, that it neither is or can be looked upon in this manner, it is not in the power of private parties to give it these privileges; so that indeed a proper subject, namely, a sum of money to be paid at a certain time, is as essentially necessary to the nature of a bill, as a drawer, acceptor or creditor. Now, by this writ, there never was any design to transfer money from hand to hand; this could be no view in the transaction, but barely to grant a security; Besides, it is entirely gratuitous, without an onerous cause in money or merchandise, which of itself is enough to defeat it, it being inconsistent with the nature of a bill to be gratuitous; and therefore, if this writing be allowed to pass as a bill, then marriage-covenants, jointures to wives, aliments, in short, everything that can fall under an obligation, maybe established by the form of a bill, which would confound all securities, and render ineffectual all our excellent regulations, that are designed to secure us against forgeries. It is true indeed, that from the favour of commerce, rights to merchandise may be conveyed without all solemnities of law; but then, though conceived by way of bill or precept, they have not the privileges contained in the laid acts of Parliament, as was decided, Lesly contra Robertson, No 1. p. 1397.; Douglas contra Erskine, No 2. p. 1397.: But however the ordinary solemnities be dispensed with, on this account allenarly, that the matter is in re mercatoria, though not precisely for money, when precepts concern the delivery of salt, meal, or other merchandise; to extend that to obligements, for daily or yearly prestations, during one's life, or to an uncertain event, would be to overturn the foundations of our law anent bills. Neither is this case similar to that of a bill drawn for a certain sun of money, payable in different parcels; which indeed is a proper subject in commerce, and only so many bills in one paper, as there are terms of payment; whereas here, the precept being for a daily prestation, can no more be a medium of trade than a liferent-right, or indeed any other security whatsoever, that can be figured in imagination; and, therefore, this improbative deed can never stand against the force of the good and laudable laws, made to prevent the ruin of families, by guarding against the artifices of forgers.

‘The Lords refused to sustain this bill.’

Fol. Dic. v. 1. p. 95. Rem. Dec. v. 1. No 25. p. 55.