Sir Alexander Brand v. James Anderson and Others, Tennants of Riccarton
Date: 13 February 1711 Case No. No 21.
A bill being drawn blank in the creditor's name, the Lords found that such bills fell within the compass of the act, and that the bill was null; the exception in the act regarding only indorsations.
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Mr Robert Craig of Riccarton being debtor to Sir Alexander Brand of Brandsfield, he draws a bill on Anderson and Gordon, two of his tenants, for 1090 merks, payable to Sir Alexander, who accepts; but the other creditors compear, and object that this bill is null by the 25th act 1696, declaring that all bonds and other deeds subscribed blank, in the person's name in whole favours they are conceived, shall be void and null: But so it is, this bill was blank in the creditor's name, as appears from occular inspection, being both filled up by a different hand and ink, ex intervallo; it being originally “pay to,” and shewn to severals, and offered to them as it stood blank; and at last he and Sir Alexander agreeing, Sir Alexander's name was filled up therein; and therefore, being contrary to so clear, express, and recent law, it is plainly null.—Answered, The act of Parliament no ways extends to bills of exchange, and being correctory, must be strictly interpreted; and if we may reason from the title of the act, it only concerns blank bonds. It is true, arguments and consequences a rubro ad nigrum do not always hold; yet where dubiety arises from the dispostive and statutory words, the rubric does frequently help to clear the same. 2do, The said act only relates to writs requiring witnesses; for it declares these blanks shall be filled up in presence of the witnesses before they subscribe; so it only reaches blank writs that de solemnitate juris need witnesses; but it is triti juris that bills by the law of nations require no witnesses.—Replied, The act not only speaks of blank bonds, but other deeds, which must certainly comprehend bills; and it were very dangerous to allow the practice of blank bills. Besides, the exception in the act puts it beyond all doubt, speaking only of indorsations of bills and notes of trading companies, so that omnis exceptio being de regula, it must confirm it in casibus non exceptis; and esto, there were the same parity of reason for extension of bills; yet law does not allow it. And though they do not require witnesses, yet holograph writs would be null, if blank in the creditor's name, though they stand good without witnesses, being an exception from the 117th act 1540, discharging any faith to be given to writs wanting witnesses.——The Lords found bills fell within the compass of the said act against blank writs; and that it was null: But the next question arose, Whether its being blank was probable by witnesses, or only by Sir Alexander, the haver of the bill, his oath? See Proof.
Fountainball, v. 2. p. 636.*** Forbes reports the same case:
In the suspension raised by the tenants of Riccarton of a charge upon their accepted bill of exchange, at the instance of Sir Alexander Brand; the Lords found, That the act 25th, ses. 6th, Pari. King William, discharging blank writs, doth extend to bills of exchange, though not to the indorsations of bills; the latter, and not the former, being expressly excepted therein. Albeit it was alleged there was no difference betwixt a bill, blank in the possessor's name, and one payable to the bearer, which would not fall under the statute; and indorsations, being the assignments or conveyances of bills from hand to hand, are to be supposed of the same nature with, and no more privileged than the bills indorsed; as assignations to bonds require the same formalities, with the bonds assigned.
