Crosbie v Brown
| Jurisdiction | Scotland |
| Judgment Date | 07 November 1900 |
| Date | 07 November 1900 |
| Docket Number | No. 18. |
| Court | Court of Session |
Lord President, Lord Adam, Lord M'Laren, Lord Kinnear.
Bill of ExchangeJoint AcceptorsRelief inter seProofCautioner.
In a claim of relief by one of two acceptors of a bill against the other it is competent to prove by parole the true nature of the transaction between the acceptors and their reciprocal obligations.
Bill of ExchangeProofParoleCollateral AgreementBill drawn on behalf of another.
A bill was drawn by A and accepted by B, who became bankrupt. In the sequestration a claim was made by C, who produced, along with the bill, an affidavit signed by A, to the effect that he had drawn the bill on behalf of C, and in pursuance of this A blank indorsed the bill to C after C's claim had been lodged. In a proof before the trustee it was established by parole evidence that A had signed the bill as drawer on behalf of C, and that B had accepted the bill in consideration of a debt due by him to C. Held that the parole proof was competent, and that C as holder, indorsee, and true creditor, was entitled to a ranking.
The estates of Robert Crosbie, farmer, Nether Keir, Auldgirth, were sequestrated on 21st January 1899. On 6th February 1899 Mrs Sarah M'Adam or Crosbie, M'Cubbington, Dunscore, the mother of the bankrupt, lodged with the trustee, Henry Hay Brown, an affidavit and claim for sums of 121, 4s. 1d. and 273, 14s. 2d. On an appeal from a deliverance of the trustee rejecting these claims the Sheriff-substitute, at Dumfries (Campion), on 30th June 1899, recalled the deliverance of the trustee, allowed the appellant a proof prout de jure in support of her claim, and remitted to the trustee to take said proof, and thereafter to re-adjudicate on the claim.
In regard to the claim for 121, 4s. 1d. the following facts were proved:On 29th October 1890 the bankrupt, Robert Crosbie, got a loan of 100 from John Hiddleston, draper, Dumfries, for which a bill was drawn by Hiddleston upon and accepted by the bankrupt and Mrs Crosbie. After several renewals the amount of the bill was paid by Mrs Crosbie on 29th October 1894. The signature of Hiddleston was thereafter cancelled.
This bill Mrs Crosbie produced in support of her claim for the principal sum of 100. The balance of the claim, 21, 4s. 1d., was made up of interest from 29th October 1894, the date of payment of the bill, to 26th February 1899, the date of lodging the claim. Apart from the bill there was no writ to support this part of the claim.
As regards the second item of 273, 14s. 2d., the following facts were proved:On 16th April 1892 Robert Crosbie obtained from Robert Stoba, solicitor, Dumfries, a loan of 200, which was secured by a heritable bond granted by Mrs Crosbie over Lagganlees, a small property belonging to her. Mr Stoba also took a bill for the 200 from Robert Crosbie. Lagganlees was subsequently purchased by John Gibson, Olive Bank, Maxwelltown, Mrs Crosbie's son-in-law, under burden of the bond in favour of Stoba, and in January 1897 the bond was paid up by Gibson and discharged. The bill for 200 was at the same time delivered up by Stoba to Gibson on the understanding that the latter was acting for Mrs Crosbie. Thereafter, on 17th February 1897, Gibson drew a new bill upon Robert Crosbie (who accepted) for 250, representing the original bill of 200 and accrued interest. Gibson deponed that he had no instructions from Mrs Crosbie to get the bill, but that he considered he had a right to it on her behalf in order to preserve legal evidence of the debt due to her by Robert Crosbie. He also appended an affidavit to Mrs Crosbie's claim in the sequestration, in which he declared that the interest as creditor in the bill for 250 is entirely in my mother-in-law Mrs Crosbie, and eight days after the claim was lodged he blank indorsed the bill to Mrs Crosbie. It farther appeared that Gibson had on other occasions transacted business for Mrs Crosbie, who was a woman of seventy-three years of age. Mrs Crosbie produced the bill, drawn by Stoba and accepted by the bankrupt, for 200, and the bill for 250, in support of her claim, which consisted of the principal sum of 250 and interest thereon from 17th February 1897 to the date of the claim, amounting to 23, 14s. 2d.
By a deliverance dated 4th April 1900 the trustee rejected Mrs Crosbie's claim on the ground that what was sought to be proved, in both branches of the claim, was a loan by the claimant to the bankrupt, and that this could not be established by parole, while the bills could not be treated as documentary evidence of the loans. The Sheriff-substitute, on 15th June 1900, affirmed this deliverance on the same grounds.
Mrs Crosbie appealed, and argued;(1) It was competent at common law to shew by parole evidence that the appellant accepted the bill as cautioner, and was entitled to relief for the whole sum expended in retiring the bill against the other obligant who had received the proceeds, and was the principal debtor.1 Apart from this, parole proof was expressly authorised by sec. 100 in a case like the present. This was not a case where parole proof was offered to contradict the bill, because the...
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