ROBERT HENDERSON v ROBERT BEVERIDGE (Court of Session)

During the greater part of the interval, between the foresaid bill falling due, and the late Mr Colvill's death, his affairs were under the management of Jamieson. The Western Bank of Scotland having discounted the bill, retained possession thereof. After Colvill's death, Henderson, as factor and commissioner foresaid, became the holder of the bill. In April 1838, he raised an action against Beveridge, the acceptor, for payment of the principal sum of L.50 sterling, with the legal interest thereof from the 14th of April 1834, when the same fell due, &c.

The defender pleaded, inter alia , that the bill in question having been accepted without value for the accommodation of the late Mr Colvill, and on the assurance and undertaking that it would be retired by him, the defender could not be called on to pay its contents to any person in Colvill's right. In support of this plea, the defender founded upon a variety of documents produced in process, and for which reference is made to the Session papers.

The Lord Ordinary (2d June 1840) repelled the defences, and decerned in terms of the conclusions of the libel; finding expenses due .

The defender reclaimed ; and prayed the Court to recall the interlocutor, and sustain the defences; or, at least, to find that the, defender is, in the circumstances of the case, as established by the documents produced, or admitted in the record, entitled to a proof of the special averments made by him in support of his defence, that the bill in question was truly a bill accepted by him without value, for the accommodation of the drawer, the late Mr Colvill, and to remit to the Lord Ordinary to proceed accordingly, &c.

The defender argued —That, in the present case, there were strong and clear presumptions established, that the bill was merely an accommodation bill for behoof of Colvill, and that, in these circumstances, seeing, moreover, that Colvill himself, the drawer of the bill, was dead; the rule of law, that an acceptor of a bill of exchange can prove non-onerosity only by the writ or oath of the drawer or holder, was not so stringent as to prevent the defender from being allowed a proof prout de jure of his foresaid special averments. He referred to the case of Macdonald v. Langton, 23d Dec. 1836.