Scottish Court of Session Decisions

The Lord Ordinary pronounced the following interlocutor, adding the subjoined note: ^*—“In respect that no evidence whatever has been produced

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^* “This cause has been very irregularly and improperly conducted, on the part of the defenders, throughout. The only defence originally proposed by Ballandene, on whom the bill was drawn by Gray, was, that a sum of money, confessedly in his hands, belonged to the wife of Gray, and not to her husband. After some litigation, however, this defence appears to be dropped; and then, when Gray compears in the action, he tells a detailed and most incredible story, of having been trepanned into granting the draft in question, by being assured by the pursuer that he was only signing an order for £5, which the pursuer had agreed to lend him, and of his signing without reading, and the pursuer running away with the draft without paying the £5, though he does not allege that he ever took any steps against him, or gave any warning to the drawee, till he was made a party to the action, more than six months thereafter. Upon this allegation of fraud, however, he gets an order for the judicial examination of the pursuer, who gives, in the course of it, a most complete and detailed contradiction to the whole story, with references to several respectable witnesses, none of whom the defender ever proposed to bring forward. It now, however, appears most probable, that the allegation of fraud was brought forward only as a pretext for having the pursuer subjected to judicial examination, as but a very small part of the interrogatories have any reference to that allegation, but are directed to the question of the specific nature of the value or consideration which was paid for the draft in question; and this examination, and, indeed, the whole of the subsequent proceedings, by production of documents and long argumentative commentaries, are exclusively devoted to establish, not that the pursuer was not a lawful creditor of the drawer at its date—for it seems admitted that he was such creditor—but that, in the pleadings prepared by his solicitor, in his examination, and in the books and accounts produced by him, he had not always given the same account of the nature and amount of the debt due to him, sometimes representing it as due entirely for furnishings, and sometimes as partly due by bills and partly on open account, and stating its amount sometimes at £22, sometimes at £28, sometimes at £19, 16s., and sometimes at no more than £19, 9s. And it is upon these alleged inconsistencies and contradictions that the sheriff appears to have given judgment against him.

“To the Lord Ordinary, however, the whole of this enquiry seems quite incompetent. The pursuer was the holder of a regular draft from Gray, the defender, and, after the preposterous charge of fraud was abandoned, the only defence was non-onerosity. But this the defender was bound to have proved by the writ or oath of the party, and had no right to support it by the tentative procedure of a judicial examination. But, after all, what is the result of the investigation? The bill is not drawn for value in groceries, or for any other specific debt; and it is quite enough to support it, therefore, that the drawer was in any way debtor to the payee to an equal amount at its date. Now, it is clearly established, that, at this time, the pursuer was the onerous holder of a bill for £21, 5s., accepted by the defender Gray and two other persons, jointly and severally; upon which, a partial payment having been made to the bank by one of those other persons, the pursuer had retired it by paying the balance of £14, 16s.; for which sum he was, therefore, clearly entitled to have done diligence against the defender. And it is also established that he held another bill, accepted by the defender, for the farther sum of £8, 5s. These two sums amount together to £23, 1s., and he has all along professed his willingness to give them up and discharge them, upon receiving payment of the £19, 9s. now sued for,

“In those circumstances, and considering that the onus of proving that the draft was granted without value is entirely on the defender, it seems quite unnecessary to enquire into the causes or extent of the minute inconsistencies alleged by the defenders, or the explanations given by the pursuer. The Lord Ordinary thinks it right, however, to state, that though the accounts of those parties seem to have been kept in a very slovenly and confused manner, he sees no inconsistencies in the statement of the pursuer which may not be easily accounted for, either by the mistake of his procurator, or by mere inaccuracy in the expression of what was substantially true and correct.

“The leading charge of this nature is, that his procurator having originally stated—at a time when no other defence had been proponed, but that the money belonged to a married woman, and not to her husband—that the draft had been granted for groceries furnished to the family. This was afterwards corrected on the record, by explaining, that part of the value of those furnishings had been previously liquidated by bills, which is substantially the statement now adhered to. For, though the Lord Ordinary has referred only to the two previous bills, as sufficiently excluding the plea of non-onerosity, it is to be observed, that one of those—for £8, 5s.—was said to have been held in security of an open account due by the defender Gray and his brother jointly, which seems to have amouuted, at the date of that bill, to £8 exactly, but having been reduced to £5, by a payment of £3 subsequently made by the defender, made the ultimate debt really owing when the draft was granted truly no more than £19, 16s., or within a few shillings of the sum in that draft, and explains, at the same time, in what sense it was said to be due partly by bills and partly on open account.

“The defender Ballandene urged strongly, that he ought not to be made liable in expenses, having acted substantially as an agent, and by the instructions of his constituent. There is no pretext, however, for any such statement as to the first part of the litigation, and while he was the only defender. But if he really meant to confine himself to that character after Gray made appearance, why did he not consign the money and retire from the contest as a party? or, rather, why did he not raise a multiplepoinding at the beginning, if he really thought he had a maintainable pretext for refusing the authentic draft of his constituent? If he was truly but an agent for the other defender he will be able to instruct that fact, and to operate his relief accordingly. The Lord Ordinary has made a reservation for this purpose. But he conceives the pursuer entitled to his expenses from all who appear as parties against him.”