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Scottish Court of Session Decisions >>
Wallace and Crawfurd v Lees and Crawfurd. [1749] Mor 1631 (31 January 1749)
URL: http://www.bailii.org/scot/cases/ScotCS/1749/Mor0401631-189.html Cite as:
[1749] Mor 1631
Found that no action lay upon a bill which had lain over for about 25 years. Both drawer and acceptor were dead.
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It has been observed supra 11th February 1747, Garden of Troup against Rigg, that although the House of Peers had reversed the decree of the Court of Session, by which it had been found that no action lay upon the bill pursued for, in respect it had lain over for 28 years, yet that judgment had proceeded upon the circumstances of the case, and not upon the general point; which, therefore, was still entire should the case again occur.
Accordingly, it did now occur in the case of a bill for 500 merks, which had not been heard of since its date in 1722, after drawer and acceptor were both dead, when the Lords, upon report, unanimously found, ‘That no action now lay upon it.’
Kilkerran, (Bills of Exchange.) No 20. p. 85.*** D. Falconer reports the same case:
Charles Crawford, merchant in Glasgow, granted two bills for 500 and 300 merks, dated 16th April 1722, and 1st December 1724, with annualrent and penalty, to Janet Crawfurd his sister; who assigned them to Anne Crawfurd; and she in 1747, with concourse of James Wallace of Wallacetoun, her husband, pursued the acceptor's representatives.
Pleaded in defence, The bills are null, as containing a penalty.
Answered, The nullity cannot be objected to these bills, seeing they were granted to an ignorant woman by her brother, a man versant in business, by whose hand they appear to be written; agreeably to the decision 26th November 1743, Garden of Troup against Mr Thomas Rigg, C. Home, p. 405. voce Personal Objection; where it was found, that Mr Rigg having been lawyer for Mr Arrot, from whom Troup derived right, could not object the nullity of a bill granted to Mr Arrot by himself: And with regard to the 500 merks bill, there is a partial payment marked upon it, whereby it was homologated.
Replied, The acceptor was neither lawyer nor manager for his sister, nor is it admitted the bills are in his handwriting: The marking on a null bill does not prove any payment was made, and is dated twenty-three years before commencement of the process; and the allowing the bills to ly so long over, is pleaded as a reason why no action should be sustained upon them.
The Lords found, that the bills having lain over so long, and the granter being dead, there lay no action upon them.
Reporter, Dun.Act. A. Pringle.Alt. Boswel.Clerk, Murray.
Fol. Dic. v. 3. p. 91. D. Falconer, v. 2. No 48. p. 46.
