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. III.

Of Gratuitous Bills.

Margaret Fulton and Margaret Clark
v.
Margaret Blair

Date: 9 November 1722
Case No. No 15b.

Found that a legacy, or donatio mortis causa, cannot be habily. and effectually constituted by a bill.

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

The now deceased James Blair, upon death-bed, granted bills to the pursuers for L. 200 Sterling; for payment of which they insisted against Margaret Blair, the defunct's sitter, upon the passive titles. It was acknowledged by the pursuers, “That there was no value paid for the bills; that they were granted and accepted by James Blair for love and favour; that when he accepted the bills, and delivered them to the pursuers, he was indisposed; and took them engaged by promise, not to show them to any body, so long as he lived; and that if he lived, and came to better health, they should give him back the bills.” The bills being thus acknowledged donations mortis causa, it was objected by the defender, that a legacy, or donatio mortis causa, cannot be habily and effectually constituted by a bill, bills being introduced for facilitating commerce, not to convey gratuities.

It was answered, That a donation inter vivos is habily constituted by a bill, much more a mortis causa donatio, for this reason, that many of the forms, essential to deeds inter vivos, ace remitted in such as are of a testamentary nature. The pursuers admitted the question would have been much narrower, if the bills had expressly born the cause of granting; because bills are writs of a certain determined form and stile; and if, in any measure, the writ transgresses that form and stile, it is no bill, and has no privilege: But, whatever be the cause of granting, whether it he designed a mortis causa deed, or inter vivos, if the writ express no more but, Sir, Pay to ‘Titus, or his order, the sum of blank, it is a good bill, and enjoys all the privileges; and this is according to the maxim, expressa nocent, non expressa non nocent.

Replied: A donation, whether mortis causa or inter vivos, cannot be constituted by a bill. Bills have their proper subject to which they are confined, namely, exchange and commerce; and when they relate to other subjects, they have no manner of privilege, but must be found null by the acts of Parliament relating to the solemnities of writs. And there is reason as well as custom for this, because, in all civilized countries, commerce has been highly cherished: And truly,. besides the favour, there was a necessity from the nature of the thing, that some short form of writing should be authorised, for facilitating the transactions and: dealings among traders; which, were they confined to the ordinary forms necessary in other cases, would, in a great measure, be inextricable. Now, neither the favour nor necessity of the case, can apply to donations in any degree. Add, that the quickness with which these bills circulate, being generally accepted, negotiated, and discharged, within a narrow circle of time, is a sufficient guard against forgeries, which they would be greatly subject to, were they allowed to be proper vehicles, for conveying gratuities inter vivos or mortis causa. The pursuers acknowledgment, that a bill cannot be in the form or style of a mortis causa donation, is an unwary giving up of the cause. Can a tolerable reason be assigned, if a bill may relate to a mortis causa donation, that this relation must not be expressed in the bill? The defender takes it for a general rule, without exception, whatever is the true and lawful cause of granting a writ, may truly and lawfully be expressed in the writ; and she submits it, if their acknowledgment does not turn strongly against the pursuers, That since a mortis causa donatio cannot be expressed in a bill, a mortis causa donatio cannot be the cause of a bill; and that abili is not the proper vehicle for such conveyances.

‘The Lords found, That a legacy, or donatio mortis causa, cannot be habily and effectually constituted by a bill.’ See Legacy.

Fol. Dic. v. 1. p. 95. Rem. Dec. v. 1. No 35. p. 72.