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.

Katharine, Anna, and Christian Huttons,
v.
David Hutton

Date: 13 February 1724
Case No. No 16.

Found, that a bill granted on death-bed was not a legal method of constituting a debt or legacy, even to the effect of affecting moveables, in so far as the bill was gratuitous.

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These pursuers insisted in a reduction of a bill for L. 350 Scots, granted by their father, when on death bed, to his brother the defender: They alleged several circumstances to infer that it had been unduly elicited; but principally insisted on this reason in law for avoiding of it, viz. That it was granted on death-bed, and that it appeared, from the defender's acknowledgment, to be gratuitous, at least as to L. 300, and therefore was of the nature of a legacy, which could not be legally constituted by a bill; for a legacy ought to be contained in some formal and probative writ, such as a testament duly executed: And though bills were probative in matters of commerce, yet in cases so very foreign to that business, as the granting of legacies, their privileges could not take place. Thus in the case of Sir Robert Myrton against George Livingston*, where Sir Andrew Myrton had accepted a bill, as an additional portion to his daughter, payable after his decease, the Lords found the bill null, as not being in re mercatoria; and 9th November 1722, Fulton contra Blair, No 15. p. 1411. it was found that a legacy, or donatio mortis causa, could not be habily constituted by a bill. And if such bills were allowed to be granted by one on death-bed, it would make way for many impositions upon weak dying persons.

It was answered for the defender: That the law required no other solemnities to deeds upon death-bed, than such as were necessary in other writs; and, therefore, as bills were probative of a gift, and were good when granted even without an onerous cause, by one person in health to another, there was no law incapacitating a dying person, when in found judgment, to give a donative to his friend in the same way. And the argument, from possible impositions, might be good

* See Provisions to Heirs and Children.

for making a new law; but, as the law stood at present, the bill was good and probative.

The Lords found, That a bill granted on death-bed, was not a legal method of constituting a debt or legacy, even to affect moveables, in so far as the bill was gratuitous.

Reporter, Lord Cullen. Act. Jo. Forbes. Alt. Pat. Grant. Cerke, Mackenzie. Fol. Dic. v. 1. p. 95. Edgar, p.31.