Scottish Court of Session Decisions

Subject_1 BILL OF EXCHANGE.
Subject_2 DIVISION IV.

Possessor's recourse against the Drawer and Indorser.
Subject_3 SECT. II.

Negotiation of Bill.

The Earl of Leven
v.
The Earl of Glencairn

Date: 20 December 1711
Case No. No 131.

Found in opposition to No 124. p. 1543. that precepts upon factors and agents, in security of debts, must be duly negotiated.

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The deceased Earl of Glencairn, in anno 1690, granted bond to Mr David Scrimzeour; then Keeper of the Signet, for L. 273 Sterling, as the secretary's dues for 39 commissions to the officers of the regiment then under the Earl's command, payable out of the first and readiest of the pay due to the regiment; and drew a precept, of the same date with the bond, for the like sum, upon James Oswald and James Dunlop general-receivers, payable to Mr David Scrimzeour, out of the first end of the pay aforesaid. The Earl of Leven (in whose person this bond and precept at length came) pursued William, now Earl of Glencairn, as representing his father.

Alleged for the defender: No recourse is competent against him, either upon the bond, or bill: Because, 1mo, The sum is presumed to have been paid, from the usual method of paying for officers commissions very quickly after they are received; from the Earl of Melvil's then great influence and interest in the nation, as Secretary of State, for whose behoof the bond and bill were granted in trust to Mr Scrimzeour; and from the payment of L. 150 thereof, very early after the date, 2do, Et separatim, The defender's father being denuded, by the precept on the general-receivers, of the equivalent sum due by them to him, which he was obliged to leave in their hands to answer it; the pursuer cannot now, after 20 years, recur against the defender as representing his father; unless he can instruct diligence for recovery thereof. Because precepts are mandates, which, in the civil law, oblige to the exactest diligence, L. 13. L. 23. C. Mandati. and, by our custom, make the mandator liable to such diligence as he useth in his own affairs. Besides, the defender's circumstantiate case is more strongly supported than by the general rule: Soldiers, qui arma magis quam leges scire tenentur, are much privileged, and their pay allowed to circulate by notes, orders, bills, or precepts, from Colonels, without necessity of the forms required in other cases; the receivers, on whom the precept was drawn, were persons of public faith and credit; the precept was out of the first and readiest of the regiment's pay, which was monthly put in the receiver's hands by the government; the receivers, interpelled by the precept duly intimated, could not pay to the Earl of Glencairn; and Mr Scrimzeour has, or might have, got payment of the whole, if he had not been in culpa lata, quam ex natura negotii tenetur præstare.

Replied for the pursuer: 1mo, All precepts are mandates with respect to the persons they are directed to; but not with respect to the receivers or creditors therein, as to whom they are plainly cessiones actionum, or assignations, which being in rem suam, especially where granted as corroborative securities, do not import any obligement to do diligence: For cuilibet licet jure suo uti vel non uti, as well as renunciare, December 16. 1668, Fraser contra Keith; Stair, v. 1. p. 571. voce Inhibition;—July 17. 1672, Earl of Wemyss contra Sir William Thomson; Stair, v. 2. p. 105. voce Diligence, (prestable by factors, &c.)—December 27. 1709, Smith contra Vint; Forbes, p. 378. voce Diligence, (prestable by assignees, &c.)—July 27. 1666, Earl of Newburgh contra Sir William Stewart, No 124. p. 1543. It is true, that apprisers and adjudgers, entering into possession by virtue of their diligences, are obliged to continue, unless they can say, debarred; that such might not be allowed clandestinely to desert their possession, and thereafter pretend to the irredeemable right by expired adjudications. But it cannot be thence inferred, That the receiver of an assignation or precept in security, (though he hath recovered partial payments thereby) is obliged to use diligence for the remainder. There are not wanting special grounds why Mr Scrimzeour could not be liable to negotiate the precept: It was drawn upon the general receivers, who never used to accept precepts, and did not accept this, and against whom no man ever protested bill, or precept, or used diligence; but other methods were taken, by applying to the treasurer, where the cashier refused to pay. Again, the defender cannot object want of diligence, because he himself hath uplifted the fund of payment; in so far as the precept is payable out of the first and readiest of the pay; and the Earl of Glencairn hath uplifted more pay, since the date of the precept, than would have satisfied the same. Nor is it sufficient, that he left more pay in the receiver's hands than would do it; for the question is not, what pay was due to the Earl of Glencairn over and above his receipts; but, whether he exhausted the subject out of which the precept was payable? And since, at several times, he received a great deal of the regiment's pay, after granting of the precept; what hindered him to receive the whole, had there been sufficient cash in the receiver's hands?

Duplied for the defender: What is argued from the parallel of assignations, or precepts, in the usual farm, is foreign to the present debate; for the Earl of Glencairn was not personally bound to pay, and the precept was limited to the pay of the regiment. Though the general receivers have been so far indulged, as not to be obliged to accept precepts drawn on them, even when they had effects in their hands, (which was necessary for expediting the public concerns of the government); the porteur creditor in the precept was still obliged to negociate it, and do what diligence the nature of the thing required. It is but trifling, what is pleaded for the pursuer, on the precept's being to be paid out of the first and readiest of the regiment's pay, and the Earl of Glencairn's receiving great payments; for it is not to be supposed, that when the Earl of Glencairn drew this precept, his regiment was to starve. The Earl was only tied up by the precept from acting any thing in defraud of it, which he never did; on the contrary, he never uplifted any payments, but with a due and suitable regard to the honour of this precept, leaving always, in the receiver's hand, much more than was needful to answer it. And, in a late case, 1703, James Henderson having charged Daniel Hamilton,* for payment of three precepts, protested both for not-acceptance and for not-payment; the letters were simpliciter suspended, upon this ground, That the protestation was not for four months after the drawing, and three months after they fell due. The Decisions cited for the pursuer do not meet the case For in that, December 16. 1668., betwixt Fraser and Keith, the ratio decidendi was, That the minute wanted a procuratory of resignation necessary for expediting the commission; and the old evidents were not delivered. The decision, July 17. 1672, betwixt the Earl of Wemyss and Sir William Thomson, makes for the defender, who

* General List of Names.

subsumes in the terms of the quality, that if the precept had been negotiated the money might have been recovered. The case betwixt the Earl of Newburgh and Sir William Stewart has probably been stopped and altered; seeing the Lord Stair, whose collection is very full and exact, before and after that time, hath not taken notice thereof. Besides, that case toucheth a missive, and not a precept; it relates to a debt personally due by the writer, and was neither presented, intimated, nor protested; which differenceth it from this case, where the precept was presented, partial payment made, and sufficient effects lest to answer the superplus, which, through wilful neglect, were omitted to be taken up. The practick betwixt Smith and Vint hath no contingency with this case; for there it was found, that the assignation being granted in security, and never intimated, the property continued, notwithstanding, in the cedent's person, who suffered the loss through the debtor's bankruptcy, conform to the rule, res petit suo Domino. Just so, in the present case, the money being transferred to the assignee, by the intimation to the receivers, the creditor in the precept has himself to blame that he did not look after it.

The Lords sustained the payment of L. 150 to Mr Scrimzeour, to extinguish the bond and precept pro tanto; and found, that the Earl of Leven hath no recourse against the Earl of Glencairn for the remainder; but that he, the Earl of Glencairn, mud assign, to the Earl of Leven, the first and readiest of the debentures due to him by the government for his father's regiment, for payment of that remainder.

Fol. Dic. v. 1. p. l00. Forbes, p. 555.