James Fergusson v. William Blair in Nether Shannoch-hill
Date: 31 July 1758 Case No. No 44.
The drawer's name may be filled up in a bill kept in his own custody, at any time before it is produced in Judgment.
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James Ferguson brought an action against William Blair upon a bill of the following tenor:
“Down, January 31. 1744. Gentlemen, Against the term of Candlemas 1745, pay, conjunctly, to me or order, in the dwelling house of John Moir, steward clerk of Monteith, the sum of five hundred and twenty-five merks Scots, value of James Ferguson.——To Robert Campbell of Torry, and William Blair in Nether Shannoch-hill, conjunctly and severally. Accepts Robert Campbell. Accepts William Blair.”
The words James Ferguson were evidently written with a different ink from the other parts of this bill.
It was objected by the defender, That this bill was void and null, for that the name of James Ferguson, as drawer, was not adhibited to till the intenting of this process. That, by the act 1696, “it is declared, That, for thereafter, no bonds, assignations, dispositions, or other deeds, be subscribed blank in the person or persons names, in whose favour they are conceived; and that the foresaid person or persons be insert before or at subscribing, or at least in presence of the same witnesses who are witnesses to the subscribing, before delivery.” This act was found to extend to bills, 9th February 1711, Brand against Anderson, voce Blank Writ; and the time of inserting the drawer's name, in the case of bills, which require no witnesses, must necessarily be either before or at subscribing. In the case of Walkinshaw contra Campbell, 8th January 1730, voce Blank Writ; a bill taken payable to the bearer, was found null upon this statute; and, in a very late case, Douglas and Hood contra Logan, 9th November 1748, No 41. p. 1438.; a bill was found null for want of the drawer's subscription.
Answered, The bill in question remained always in the custody of James Ferguson the drawer, to whom it was originally delivered, and was subscribed by him before it was produced in judgment. Although the act 1696 should be understood to apply to bills, yet that would not annul the bill in question; for, in practice, it has always been held sufficient, that the drawer's name be filled up, before the bill is produced in judgment. This is an indulgence allowed in consequence of the usual practice in commercial transactions, that the drawer often delays to adhibit his subscriptions, till he comes to make use of the bill, And this does not occasion that sort of confusion, which it was the purpose of the act 1696, by prohibiting blank writs, to prevent; for it is not the practice to transfer these blank bills to other persons, who may fill up their name as drawer; because the facility of indorsation renders that method altogether unnecessary: and therefore it would be hurtful to commerce, without being attended with the benefit, which the act 1696 proposed, if bills were found null, wherever the drawer's name was not adhibited before or at subscribing. This construction of the act of Parliament has been established by several decisions; and was first introduced by a decision 27th July 1738, Henderson contra Davidson, No 35. p. 1435.; and afterwards confirmed by a latter decision, 25th November 1748, Elias Cathcart contra Henderson, No 41. p. 1439.; where the Lords repelled the objection to a bill, That it was signed by the drawer after the death, not only of the debtor, but of the creditor in the bill, to whom it was made payable; upon this medium, That it had been signed by the drawer before it was produced in judgment, and had been in possession of the drawer, from its date, for the creditor's behoof.
‘The Lords repelled the objection to the bill.’
Act. JohnstoneAlt. Will. Grahame. W. Johnstone.
Fol. Dic. v. 3. p. 76. Fac. Col. No 130. p. 241.
