A bill subscribed by a mark before witnesses, was sustained, it being proved to be the party's custom so to subscribe.
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Robert-Brown pursues Johnston of Clacherie, for payment of £1200, contained in a bill of exchange, subscribed before two subscribing witnesses, and marked with Clacherie's hand. There were several other bills for greater sums produced, marked with the like mark; and none compearing for Clacherie;
The Lords caused examine the witnesses insert, who deponed that Clacherie was accustomed so to subscribe, and one of them deponed, that he saw him put this mark to the bill in question. Several others deponed, that they had accepted such bills in regard of his custom, and had obtained, payment from him, without any debate thereupon.
The question rose to the Lords, whether a sum above £100. could be proved by such a writ, that had only a mark; and having demurred upon it before, till they should try if any such case had been sustained formerly, and none having been found sustaining any writ, not being subscribed with the whole name, or at least the initial letters of the debtor's whole name; it was offered by some, that Clacherie's oath might be taken, ex officio, or de calumnia, not simply to refer the debt to his oath, but whether that truly he set to this mark, before these witnesses; but Robert Brown being a dying the Lords would not defer, but decided the case, and found that this writ being a bill of exchange among merchants, and Clacherie's custom so to grant bills of greater importance than this, being clearly proved, and none appearing for him, they decerned against him upon the bill and testimonies, many of the Lords being of different judgment, and that it was of dangerous preparative to encourage forgery; but it was sustained only in all the particular circumstances aforesaid, and not to be a general rule.
