A bill signed by the drawer, before producing it in Court, was found good, although it had lain by unsigned till after the death, both of the acceptor and creditor.
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Mary M'Hutcheon made a settlement of her effects on her filter Helen, wife to Elias Cathcart, who brought a process against the representatives of John Dick for L. 20 Sterling, contained in a bill accepted by Dick, payable to Mary M'Hutheon.—It was alleged for the defenders, That the bill was void, as having been blank in the drawer's name at Mary M'Hutcheon's death; and, though Elias Cathcart's name was now at it, as drawer, it was irregular for him to adject it.
This objection would, no doubt, have been sustained, had Mary been the intended drawer; but, it appeared to the Lords from the tenor of the bill in these words, “Air, December 12th 1740. Against Candlemas next, pay to Mary M'Hutcheon, &c. at my house in Air, the sum of L. 20 Sterling, for value received in cash from your friend,” and other circumstances, that Elias Cathcart himself was the intended drawer.
The Lords therefore ‘repelled the objection, that it was signed by Elias after the death of Mary; the same being signed by him before it was produced in judgment; and having been in possession of the said Elias from its date, for the creditor's behoof;’ notwithstanding the doubt entertained by some, how a contract could subsist which had not been completed in the lifetime of the parties; 12th November 1742, Sandilands contra Dickson, No 38. p. 1436.
Fol. Dic. v. 3. p. 76. Kilkerran, (Bill of Exchange.) No 19. p. 84.*** D. Falconer reports the same case:
Elias Cathcart, merchant in Air, pursued the representatives of John Dick in Guiltreehill, for L. 20 Sterling, due by bill drawn upon the said John, for value from the drawer, and accepted by him; payable at a term, to Mary daughter to Hugh M'Hutcheon, late provost of Air; as contained in a general disposition of her effects to her filter Helen, spouse to the said Elias, by whom the draught appeared signed.
Objected, That the acceptance remained blank in the drawer's name, in the hands of Elias Cathcart, till after the death of both John Dick and Mary M'Hutcheon, when he adhibited his subscription,
The Lord Ordinary, 27th January 1748, ‘repelled the objection to the bill, that it was signed by Elias Cathcart after the death of Mary M'Hutcheon; the lame having been signed by him before it was produced in judgment; and having been in possession of the said Elias from the date thereof, for the creditor's behoof.’
Pleaded in a reclaiming bill, A document informal at the time of the creditor's death, cannot be made formal afterwards: The contract must be understood as entered into at the time of the completion of the writ; and it involves a solecism for a person to became bound to pay money to one who is dead; as also in this case for one to contract with the dead, and on that contract to pursue his representatives on the passive titles, for a debt he was never liable in.
Answered, When a bill is accepted before signing the draught, and delivered, it is in the power of the drawer to sign it at any time; which right he cannot be deprived of by the death of the debtor: Also, where the creditor is not himself the drawer, the draught may be signed after his death; as the right of credit is vested in his representatives.
Observed, That the draught being signed before production, was fictione juris signed of the date.
The Lords adhered.
Act. A. Macdouall.Alt. H. Home.Clerk, Forbes.
D. Falconer, v. 2. No 15. p. 17.
