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Scottish Court of Session Decisions >>
Gavin Hogg v John Fraser. [1786] Mor 1521 (29 November 1786)
URL: http://www.bailii.org/scot/cases/ScotCS/1786/Mor0401521-107.html Cite as:
[1786] Mor 1521
Subject_1 BILL OF EXCHANGE. Subject_2 DIVISION II.
The Porteur's Action against the Person upon whom the Bill is Drawn.
Subject_3 SECT. II.
Extraordinary Privileges of Bills.
Gavin Hogg v. John Fraser
Date: 29 November 1786 Case No. No 107.
A person was drawn upon for a larger sum than he had in his hands. He refused acceptance. Several months after, the sum which had been in his hands was claimed, at the instance of the holder of the refused bill. The sum was found not to have been attached by him.
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Gavin Hogg, in consequence of an order from Simon Fraser, merchant in Inverness, drew bills for L. 154, on Mr John Fraser, who refused to accept, because the sums in his hands, belonging to Simon Fraser, amounted only to L. 55:7:2. But he offered, for the accommodation of his correspondent, to honour a bill of exchange for L. 100; which, however, he was not required to do.
Mr Hogg took no farther measures for thirteen months. By this time Simon Fraser had become insolvent, after Mr John Fraser had interposed his credit for him to a considerable amount. An action was then brought by Gavin Hogg, in which, in order to subject Mr Fraser to the payment of L. 55.:7:2, it was
Pleaded: The drawing of a bill of exchange, or, what is the same thing, the giving authority to make such a draught, is equal to an irrevocable assignment of those effects of the drawer, which are at the time in the hands of the drawee. Erskine, book 3. tit. 2. § 29.
Answered: If the pursuer had, within a reasonable time, limited his demand to the sums acknowledged to be due by the drawer, his present claim might have been deemed a just one. But it would be attended with the most pernicious consequences, if, by such unfinished transactions as here occurred, any restraint could be introduced on the freedom of commercial dealings.
‘The Lords sustained the defences, and found the pursuer liable in expences.’
Lord Ordinary, Hailes.Act. N. Fergusson.Alt. Honyman.Clerk, Orme.
Fac. Col. No 296. p. 455.
