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Scottish Court of Session Decisions >>
Robert M'Lauchlan of that Ilk v Allan M'Lauchlan. [1760] Mor 1432 (2 January 1760)
URL: http://www.bailii.org/scot/cases/ScotCS/1760/Mor0401432-033.html Cite as:
[1760] Mor 1432
Of Bills with clauses stipulating Annualrent and Penalty.
Robert M'Lauchlan of that Ilk v. Allan M'Lauchlan
Date: 2 January 1760 Case No. No 33.
A bill bearing annualrent and penalty, sustained, where the debt was acknowledged by the acceptor.
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In the year 1726, Allan M'Lauchlan accepted a bill to Evan M'Lauchlan, for 1000 merks, with annualrents and penalty, conform to law; which is holograph of Allan the acceptor.
Robert M'Lauchlan acquired right to this bill. Allan paid the annualrents regularly for several years; but having at length refused payment, Robert brought an action against him.
Objected for the defender, The bill is null, as bearing annualrent and penalty.
Pleaded for the pursuer, 1mo, At the period when this bill was granted, the form in which it was executed was held legal. By decisions of a later date, the contrary has been found; but such decisions ought not to have a retrospect. 2do, The words in the bill, ‘annualrent and penalty, conform to law,’ can have no effect. Annualrent is due, whether it be stipulated or not; penalty is not due, although stipulated: The words are therefore supersluous, and must be held pro non adjectis. The defender is barred, personali exceptione, from objecting this nullity; for that he himself both wrote the bill, and homologated it, by payment of annualrent for several years.
Answered for the defender, Bills were introduced for the benefit of commerce to facilitate transactions, by supplying the place of ready money, but not to remain as permanent securities: That therefore the form of bills, in all trading countries, is precise and uniform; and in every country, except Scotland, their endurance is limited by a short prescription: But as in this country there is no statute of limitations, the Court has been the more attentive to define the nature and form of such slender securities; and to declare them void when they contain stipulations beyond their proper form. The consequences arising from their being employed as permanent rights in place of bonds, and other formal deeds, would be dangerous; therefore it has been found, by a series of decisions, that bills bearing annualrent and penalty are null. It is of no moment, that the bill is written by the defender. The form of every obligation is presumed to be the operation of the creditor; although it may be the act of the debtor, yet he is presumed to grant that fort of security which the creditor demands: To it therefore the debtor, when pursued, may object. The very stile of a bill is the language of the creditor making a demand, like the Roman stipulation; and therefore, if he makes an improper demand, and thereby frames an informal security, he has himself to blame.
‘The Lords, as the debt was acknowledged, sustained the bill.’
Act. J. Campbell, junior.Alt. Garden.Clerk, Kirkpatrick
Fol. Dic. v. 3. p. 75. Fac. Col. No 206. p. 369.
