A bill found void and null as wanting the drawer's subscription.
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William Clark, taylor in the Canongate, was boxmaster to that incorporation for two years preceding Whitsunday 1742; and being, at accounting, found considerably in arrear, agreed to procure George Logan, lastmaker there, to become bound with him for L. 70 Sterling; which was executed, by their accepting a bill, 12th November 1742, for that sum to James Tyrie, then boxmaster, and his successors in office.
The accepted bill being shewn to the incorporation, it was observed, there was a mistake in the draught, it containing these words, due by William Clark in part payment of the balance of my last quarter accompts, instead of his; whereupon, by order of the incorporation, the clerk and boxmaster brought it back to Logan some time in January 1743, and desired him to accept a new bill for L. 60, L. 10 being paid; but he took up the bill and carried it away, the drawer not having yet adhibited his subscription thereto, and never granted any other.
John Douglas armourer, and Jean and Lilias Hoods, creditors of the incorporation, arrested in Logan's hand; and in the furthcoming he deponed as above; alleging the ground of his abstracting the bill was, that the principal debtor had engaged to give him security for his relief, in view of which he had accepted, but had not obtained it.
The arresters insisted in their action; and the Lord Ordinary, 31st January 1745, “Found that the said George Logan having got up the bill of L. 70 Sterling, which he acknowledged to have been wrote with his own hand, without any consideration by him given for delivery thereof, from the clerk to the incorporation, who had no power gratuitously to give it up, in prejudice of the incorporation; and that, further, it was delivered up by the clerk, to the intent that he Logan should accept a new bill of L. 60, William Clark, the original debtor, having paid the difference, Logan was in mala fide to detain the old, and refuse to sign the new bill; wherefore, and that it was still in the power of the creditor to supply the defect in the bill, as wanting the subscription of the drawer, at any time before production thereof in judgment: Found, that Logan was personali exceptione barred from objecting to the bill, the nullity of its wanting the drawer's subscription; and found him liable in the sum of L. 60 Sterling due of the debt, with the annualrents thereof.” And, 23d January 1747, Found, that after the bill had been out of the acceptor's hand, and in the possession of the incorporation, he could not lawfully retire his bill without their consent; and as there was no evidence of such consent, found that the bill was to be held as still in the hand of the incorporation; but prejudice to the defender to be heard on his objections to the bill, as to its form, or otherwise.” And, 24th June, ‘refused a representation upon the point upon which judgment was therein craved;’ to wit, how far the bill was void and null, as wanting a drawer.
The Lords, 6th July 1748, ‘found the bill void and null.’
On a second bill, and answers; chiefly moved by this, that the contract was incomplete till the drawer's subscription was adhibited; that till then the acceptor had it in his power to refile; and if he had not got the opportunity of recovering the bill, he could have declared his refiling, and demanded it up;
They adhered.
Act. Williamson.Alt. H. Home.
D. Falconer, v. 2. No 5. p. 5.
