Scottish Court of Session Decisions

Sir R. C. Glyn, Mills, Halifax, and Company, bankers in London, raised an action against Alexander Johnston and Company, merchants in Edinburgh, for payment of two acceptances of theirs, for £500 and £180, respectively. Both of the bills were drawn by J. Cork and Company, payable at Messrs James Bult and Company's, Cheapside, London, and were indorsed by J. Cork and Company to T. A. Kendall and Company, by whom they were indorsed to the pursuers. During the action, Alexander Johnston, the sole partner of Alexander Johnston and Company, died, and his widow and representative was sisted in his place. It was pleaded in defence, that J. Cork and Company were the only parties entitled to call the defenders to account for the bills, because T. A. Kendall and Company had given no value for them, and had received them for the specific purpose of carrying them to the pursuers' bank to be discounted, and had left them at the bank for that single purpose, notwithstanding which the pursuers had refused either to discount them or to return them, but had kept them, without authority, as a security for the general balance due by T. A. Kendall and Company.

After closing the record, a question arose whether it was competent for the defenders to prove by parole, according to the law of England, the facts and circumstances connected with the depositation of the bills in the hands of the pursuers. The Court found, “that the allegation of the defenders, that the bills now sued for, which were payable in London, were left at the banking-house of the pursuers only for the purpose of being discounted, and not in payment or security of the general balance due to the pursuers by Kendall and Company, together with counter allegations of the pursuers in their revised condescendence, may be proved by parole testimony, if, by the law of England, such proof would, in a case of the same kind, be admissible in that country.” ¹

A proof was led in London on commission. T. A. Kendall, the sole partner of T. A. Kendall and Company, refused to attend and undergo examination, alleging that he could not say any more than was contained in an affidavit which he had emitted before the Lord Mayor; and that he could do no farther good to the defenders than what was contained in that affidavit. The affidavit was produced to the commissioner, and sent sealed up along with the report of the proof. It was contended by the defenders that they should be allowed to open the seal, and read the affidavit, as the absence of Kendall from the diet of examination had not arisen through any fault of theirs, since they had no compulsitor to force attendance, so that they were as well entitled to road it as if it were the deposition of a party deceased. Independently of this, they maintained that the proof established their defence, and that the Court, sitting as if they were an English jury to try the fact of the condition of deposit of the bills, should feel satisfied by that proof, and assoilzie accordingly. The pursuers answered, that the absence of Kendall was occasioned by no fault of theirs, and they had a right to object to the reading of an affidavit of a party who was alive, and in London at the time of the commission; and that in England the statement, even of a deceased party, was not allowed to be made evidence, and still less of one in the situation of Kendall. They contended that the proof did not establish the facts alleged by the defenders, and therefore decree must be pronounced in their favour.

The Lord Ordinary “found that the affidavit of T. A. Kendall is inadmissible as evidence; and therefore ordains the same to be withdrawn from process: and having considered the closed record, process, and proof,

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¹ June 8,1830 (ante, VIII. 880).