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The deceased Robert Brash addressed the following obligation to the pursuer: ‘ Strathblan, November 22. 1822. Sir, I hereby acknowledge that I have received from you the sum of L.27: 10: 6 sterling, which I oblige myself to pay you at Whitsunday first, or grant my bill, with interest; as witness my hand, Robert Brash.’ It was said, but there was no evidence of the statement, that this was a loan to Brash to enable him to settle with a tradesman for certain repairs which had been executed upon his property.
In an action against Brash's representative, founded on this document alone, the summons set forth, that the former died without making payment of the principal sum, or granting a bill for the same; and the said principal sum, and interest thereof from November 1822, were still resting owing to the pursuer by the defender, as representing the granter; and concluded simply for payment of the aforesaid principal sum, and legal interest thereof.
But even if this writing were an effectual obligation, it could not be made available under this action. The obligation that arose from non-payment at the specified day was to grant a bill with interest, whereas, what the summons demands is payment of the debt, without setting forth any circumstances which could infer such conclusion; Stirling v . Lang, 4 March 1830.
Answered —1. The obligation to pay, in order to constitute a bill or promissory-note, must be absolute. By adjecting any condition to the obligation, the distinctive character of a bill is taken away from the document. The present is an alternative obligation to pay the money borrowed, or to grant a bill, and, therefore, not to be accounted a promissory-note to any effect; 2. Rose's Bankrupt Cases , 225; Chitty , 7th ed. 42, 45; Buller , 272.
The statement in the summons, that the granter of the obligation died without either paying the principal sum, or granting a bill for the same with interest, was sufficient to authorise the direct conclusion for payment of the money.
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