Scottish Court of Session Decisions

On the death of the late Angus Darroch of Gourock, Lieutenant-General Duncan Darroch succeeded to the estate of Gourock. The creditors of Angus Darroch threatened to adopt certain judicial procedure, which General Darroch was desirous of preventing, and he offered a sum of £1250 to the creditors, in consideration of their giving. up such procedure, and also conveying a right of superiority in Renfrewshire to him. One of these creditors was the late William Lade, writer in Port-Glasgow, and General Darroch stated, that Lade held himself out as having influence with the rest of the creditors, and had endeavoured to induce him to agree to pay a composition on the debts of the creditors, or at least to pay his debt, and thereby secure his influence to induce the other creditors to make an arrangement extrajudicially. Lade stated his claim against Angus Darroch to be £619, 8s. 7d., and he claimed for that amount in a multiplepoinding, which was raised by the executor of Angus Darroch. The common agent in the multiplepoinding refused to allow the claim of Lade until vouchers were produced, and it thus stood over, when the following correspondence took place.

On 28th May, 1830, Lade wrote to General Darroch, stating, that some of the creditors seemed resolved to force him into Court, and added, “It would certainly be very disagreeable to me to be a party to any action against you, but at the same time every individual is entitled to attend to their own interest. Having every wish, however, to keep quiet, if possible, I will, upon your sending me by the bearer a check for £310, (the half of my claim as allowed by the common-agent,) grant an assignation of my debt in your favour, but upon condition, that if you shall be obliged by law to pay any other creditor the whole, or any greater dividend, I will not be put in any worse situation, and reserve recourse accordingly.

“I have heavy payments to make just now, and the above sum would be conferring on me a very great favour.”

Next day, the General answered, “Your offer has come so unexpected upon me, that really I know not what to say. Independent of my wish to serve you, for your past conduct since Angus' death, I certainly would like to advance the money on the assignation you mention, or even lend you the sum on your own bill. I wish to serve you. I am sadly puzzled.

“Meet me at the Bank, Monday or Tuesday—Tuesday would be more convenient for me—and we will see what can be done. I hope it will not be inconvenient for you this delay.”

A meeting of the parlies took place, at which a bill for £400 was drawn by General Darroch upon Lade, accepted by Lade, and indorsed by Darroch to Mr Thomson, cashier of the Greenock Bank. The res gesta at this meeting was thus described by General Darroch. “The respondent (Darroch) did accordingly meet Mr Lade at Greenock, and went with him to the Bank, where they found Mr Thomson. A conversation then ensued upon the state of matters. The respondent still adhered to his original resolution, not to settle individual debts, or to agree to any payment of so much per pound on the debts generally; and the other parties seeing this, and finding that, without the advice of his Edinburgh agent, the respondent would not come under any positive obligation, it was suggested, that, as it was an object to Mr Lade to make some money arrangements with Mr Thomson at that particular time, it would be of service if he would put his name to a bill for Mr Lade for £400, as a pro forma matter, but with which he should afterwards be in no shape troubled. To this the respondent assented; and a stamp was then produced by Mr Thomson, on which a bill for £400 was written out, payable at the ensuing term of Martinmas, 1830, of which bill the respondent is the drawer, and Mr Lade the acceptor.

“The bill, after being subscribed and indorsed by the respondent, was delivered to Mr Thomson; he and Mr Lade making their own private arrangement as to its application to the debts due by Lade to Mr Thomson and the bank, The respondent positively avers, that no consideration whatever was received by him—that it was distinctly understood that no purchase of Lade's debt had taken place—and that he was positively assured by Mr Thomson he never would be troubled with the bill—and that it was upon that express footing that the respondent signed as drawer of the bill.”

General Darroch also stated, that it was sometime afterwards discovered that the bill was written on an undcr-stamp, and he was requested to write out another bill, on a proper stamp, which he refused to do, “having by this time discovered the deception which Lade had attempted to practise upon him, in representing his debt as having been allowed by the common-agent, and having also begun to suspect that something else was intended to be accomplished under colour of the bill, than had been stated to him when it was signed.”

When the bill became due, General Darroch refused payment of it. He had a cash-account at the Bank to the amount of £400, which, being drawn out, some discussion took place, at a meeting between General Darroch and Mr Thomson, as to the security which the General should give the Bank. It was part of the subject under treaty, that the Bank should give a new cash-credit for £1000, and “that Mr Lade's bill shall be settled from the first of this new cash-credit.” The terms proposed by the Bank were reduced to writing, and the General entertained the proposal so far as to consult with his law-agent regarding it, but finally declined going into the arrangement.

The Bank raised an action against him, setting forth that he had agreed to purchase Lade's debt at the price of £400, and had applied to Mr Thomson for £400, who advanced the money to him, and that he had paid over the £400 to Lade; and they pleaded, that, independently of the bill which was granted on that occasion, there was sufficient evidence in the admissions and correspondence to prove the advance of £400, to, or on account of the General.

The General pleaded, that the bill, being erroneously stamped, must be laid out of view, and that there was no evidence of his having received any advance, or come under any obligation independently of it. ¹

The Lord Ordinary found, “that the pursuers have failed to establish that the sum of £400 libelled was advanced by them to the defender: therefore sustained the defences, assoilzied the defender from the conclusion of the libel, and decerned; and found the pursuers liable in expenses.” ^*

The pursuers reclaimed.