Scottish Court of Session Decisions

This was a suspension of a charge upon a bill, on the ground that no value had been received by the suspender. The question of value had been referred to the charger's oath. It appeared from the oath that the suspender had been sequestrated in November 1867, and at that time the charger was his creditor in a bill for £146, 17s. 8d.; and also that the suspender had been discharged in February 1868 under a composition-contract, whereby his creditors, including the charger, had agreed to accept of a composition at the rate of 7s. 6d. per pound. It farther appeared that some time after the charger had agreed by letter to accept of the composition the parties met at Greenock, when the suspender accepted a second bill for £147—namely, the bill now charged on. The suspender averred, with reference to this bill, that he accepted it as an accommodation to the charger, who was his brother, but the charger deponed in reference to it—“My brother gave me the second bill of his own free will. He said he had failed so shortly before, and he did not wish to take me in. Both he and I considered that the granting of the second bill was a rearing up of the debt.”

The Lord Ordinary (Manor) passed the note.

The charger reclaimed.

Gifford and Duncan for him.

Burnet in answer.

The Court reversed, holding that the terms of the oath were negative of the reference. The old debt was no doubt extinguished by the discharge following upon the composition-contract, and the suspender was under no legal obligation to grant the second bill; but every bankrupt was under a moral obligation to pay his debts in full if he became able to do so, and that obligation was sufficient legal consideration for granting the bill. It was also thought to be clear, from the passage in the oath above quoted, that the consideration referred to was the cause of the suspender accepting the bill.