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Scottish Court of Session Decisions


You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Spinks v. Innes [1866] ScotLR 1_129_1 (2 February 1866)
URL: http://www.bailii.org/scot/cases/ScotCS/1866/01SLR0129_1.html
Cite as: [1866] ScotLR 1_129_1, [1866] SLR 1_129_1

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SCOTTISH_SLR_Court_of_Session

Page: 129

Court of Session Inner House First Division.

Friday, Feb. 2. 1866.

1 SLR 129_1

Spinks

v.

Innes.

Subject_1Bank Cheque
Subject_2Mandate
Subject_3Revocability
Subject_4Proof — Onus Probandi.
Facts:

(1) A bank cheque is a mandate, and irrevocable if given for an onerous cause, but revocable if it is not; (2) A person alleging that a cheque was given to him in payment of a debt must prove his averment; (3) Circumstances in which held (aff. Lord Ormidale) that onerosity had not been proved.

Headnote:

This action was raised by Charles Spinks, turner, Kirkgate, Leith, against John Innes, engineer, residing in Alloa, for payment of £100 contained in a bank cheque or draft, dated 21st April 1864, drawn by the defender on the manager of the City of Glasgow Bank, and payable to the pursuer. It was averred by the pursuer that the cheque was given in payment of money due to him “for advances of money made and services rendered by him to the defender at various times during a long course of years, when the defender was often in pecuniary difficulties, and pressed for money to meet the daily requirements of himself and family, and otherwise embarrassed and in trouble.” The defender averred on record that on the Edinburgh Fast Day in April 1864, the pursuer, who knew that the defender had succeeded to a considerable sum of money, came to Alloa to visit him, and that after they had been drinking together for some time, the pursuer proposed that the defender should lend him £100 on the security of his property in Leith, which was already fully burdened. The cheque was therefore written out, but at the time it was done, “and when the arrangement was made for the security to be given for the loan, the defender was intoxicated, and incapable from intoxication of doing any business, or of understanding the nature of the transaction into which the pursuer endeavoured to induce him to enter.” Next morning the defender went in search of the pursuer in order to accompany him to Leith to see after the heritable security, when he found he had gone to Glasgow. He therefore telegraphed to the bank there, and payment of the cheque was stopped. No value, he said, was given for the cheque by the pursuer, and it was fraudulently impetrated from the defender in the manner above described.

With the concurrence of parties, the Lord Ordinary (Ormidale) allowed a proof before answer. Thereafter his Lordship found as matter of fact (1) that no value was given by the pursuer to the defender for the cheque; (2) that when the cheque was obtained by the pursuer, the defender was in such a state of intoxication from excessive drinking as to be easily imposed upon and taken advantage of; and (3) that the pursuer, taking advantage of the defender when in that state, fraudulently impetrated the cheque from him. He therefore assoilzied the defender. The pursuer reclaimed, and the Court adhered.

Judgment:

The Lord President said—The question is whether the pursuer is entitled to recover. He does not allege any donation, but says the cheque was given in payment of a debt due to him by the defender. The defender, on the other hand, says in his evidence that he has no recollection of giving the cheque, and is quite oblivious as to what passed at the time; but that next morning when he found out that he had given it he went to the telegraph office and stopped payment. Which of these statements has been made out more satisfactorily? Was there a debt due by the defender to the pursuer, and may it reasonably be inferred that the cheque was given in payment of it? I think the Lord Ordinary has taken the right view. Taking the pursuer's own statement, he has only proved loans of very small sums—a few shillings or so at a time. As to the amount of the pursuer's incapacity at the time, that is somewhat obscure; but certainly there was a great deal of drinking, and no doubt the pursuer was not capable of attending his business as he should have been, and was thus more easily imposed on. Whether or not he was wholly incapable is a point on which the witnesses differ, and which depends on the different criteria on which they form their opinion, but on which I think it unnecessary to enter.

Lord Curriehill—This cheque contains no personal obligation. It is a mandate to the bank to

Page: 130

pay a sum to the pursuer. Why, then, does the pursuer not sue the bank to pay? The answer is, payment has been stopped. But could it be stopped? Was the mandate revocable? If it is revocable, then it has been revoked. If not, then the pursuer should sue the bank and not the defender, or raise a multiplepoinding as was done in the recent case of Bryce ( ante p. 114). If the mandate was granted for an onerous cause, it was not revocable. It is not alleged to have been gratuitous. It was therefore incumbent on the pursuer to prove that there was an onerous cause of granting. I think he has failed to do so.

Lord Deas—The question is whether this cheque was given in payment of a debt, or whether it was intended for a different purpose which was not followed out. Its revocability depends on this. If it was given in payment of a debt, that was a good enough way of discharging the debt. If not, then it was revocable. We held lately, in the case of Bryce, that we should inquire quo animo the cheque was granted. Accordingly, what was attempted to be proved here was that the cheque was payment of a debt. The pursuer has failed in this proof, and it does not much matter whether the defender was drunk or sober at the time. I think if we were to hold on the proof that he was sober, the result would just be the same.

Lord Ardmillan—I don't think, as Lord Curriehill suggests, that the form of this action is material. We must get at the fact whether or not this cheque was onerously held. I have no doubt that these bank cheques are documents which are examinable to the effect of ascertaining this. It was not a gift; that is not alleged. It was not a loan; that is positively denied. It is said to have been payment of a pre-existing debt. The burden of proving that was on the pursuer, and he has failed in doing so.

Counsel:

Counsel for Pursuer—The Solicitor General and Mr Pattison. Agents— Messrs J. & W. C. Murray, W.S.

Counsel for Defender— Mr Patton and Mr Gifford. Agents— Messrs Patrick, M'Ewen, & Carment, W.S.

1866


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