Scottish Court of Session Decisions

William Mather, residing at Willowbrae, near Edinburgh, was the drawer of a bill of exchange, which, he indorsed to James Nisbet, wine-merchant in Glasgow. Nisbet gave a charge of horning on the bill to Mather, who presented a bill of suspension stating, “1st, That the acceptor, on the 30th day of September last, paid up to the chargers the whole contents and amount of the said bill charged on. 2d, That I, as the drawer and indorser of the said bill, received no intimation from the chargers of the dishonour of the bill, in terms of law and practice. 3d, That should the two foregoing reasons and statements be denied by the charger, I do hereby refer the same to his oath. Therefore, and for other reasons and causes to be proponed at discussing hereof, the said letters of horning, &c.” ought to be suspended.

Under the reference, an oath was emitted, negative of the points referred, and when the suspender proposed to ask whether the charger gave money for the bill, he was stopped by the commissioner in respect of the irrelevancy of the question to the matters referred.

The Lord Ordinary “adhered to the deliverance of the commissioner, rejecting the interrogatory proposed by the suspender;—and in respect the deposition of the charger on the relevant questions is negative of the reference, refused the bill, and found the complainer liable in expenses.”

Mather reclaimed, and asked leave to put in an additional reference to oath, embracing, inter alia, the onerosity of the charger's right. The charger objected that such reference was incompetent under the bill of suspension, as the specific grounds of suspension there alleged were quite distinct from non-onerosity.