William Buchanan v. Andrew Duncan, Baker in Glasgow
Date: 27 June 1765 Case No. No 52.
Action refused upon a bill subscribed by notaries, without witnesses.
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John Buchanan, some time before his death, conveyed his whole effects to certain trustees, for the purposes mentioned in the trust-disposition. Janet Macklum, his widow, the fulfilment of the obligations to whom, made part of the trust-deed, among other debts assigned to her by the trustees, got a bill, accepted by Janet M'Farlane; the acceptance of which, as she could not write, was, by her authority, signed by two notaries. Janet Macklum having executed a testament in favour of the pursuer, he brought an action against Andrew Duncan, the defender, as representing Janet M'Farlane, in the character of a vitious intromitter.
Against this action, it was contended; on the part of the defender, That the bill was not good, being signed by notaries; and, even upon the supposition, that a bill was valid when signed by notaries; yet the present was void, as there were no witnesses to the subscription of these notaries. That, in this country, there are only two methods of constituting a valid obligation; either by a writing, holograph of the party; or by a deed wrote by another, bearing the name of the writer and witnesses, with the subscription of the last. When the deed is not holograph, the party either can write, or cannot write. If the last is the case, then the law allows him to subscribe by two notaries, specially authorised, in presence of four witnesses; whose names and designations, with that of the writer, must be inserted in the deed. But the bill in question, though it could have admitted of these solemnities, is destitute of them all; and, therefore, it would be repugnant to the law of this country, were such a deed to be found valid, in direct opposition to the most positive statutory enactments.
As to the arguments advanced by the pursuer, concerning the usage of almost all countries, relating to bills of exchange; and the particular indulgence every where shown them, to facilitate the operations of commerce; the pursuer must be pardoned for being of opinion; that, if the indulgence, already given to bills of exchange, were to be enlarged; consequences would follow, prejudicial to commerce itself, and hurtful to the security of private property; as new methods would then be furnished, by the interposition of notaries, and other persons, to create obligations, to which the persons bound never gave their concurrence.
In answer to these arguments, the pursuer observed, That bills of exchange have always been privileged with an exemption from the statutory solemnities, requisite in other deeds. Some small inconveniences, perhaps, may arise from this indulgence; but there, the national advantages derived to commerce, renders the other unworthy of observation. Holograph bonds do not prove their date in questions with heirs or creditors; yet bills do; though it may be said that a person may antedate a bill, to avoid the effect of the act 1696, or to prevent the effects of an inhibition. This shows, that the arguments arising from the inconveniency, attending the privileges granted to bills, are inconclusive; as that inconveniency is evidently disregarded by the law itself.
Writing is now become almost universal; and few cases can occur, when the assistance of others, on account of being otherwise, is necessary; and, it would be extremely hard, if, in a case such as the present, a bill, signed by notaries, was to be rejected; when it is offered to be proven, that the two notaries were at the house of Janet M'Farlane, when the bill was accepted; that she was heard frequently to acknowledge the justness of the debt; and her haying authorised the notaries to sign for her.
The statute 1579 respects only deeds where witnesses are required to the subscription of the parties; but, in bills of exchange, this solemnity was never required. The subscription of the notary comes in place of that of the party; and, if witnesses are not required to the first, there appears no reason why they should be necessary to the last.
The case of Dinwoodie, 28th of June 1737, No 21. p. 1419. is precisely in point; where the Court found a bill to be valid, though subscribed by notaries.
The Court seemed to be of opinion, that, if witnesses had attested the subscription of the notaries, the bill would have been good. And, as to the case Dinwoodie, it was observed, on the Bench, That there were two witnesses to the subscription of the notary; notwithstanding of which, the Court first found the bill void, and its being afterwards sustained, was chiefly on this medium, that the debtor was alive, and did not disown her having authorised the notaries to sign for her.
‘The Court sustained the objections to the bill. See This case, voce Writ.’
Act. James Dundas.Alt. John Dalrymple.
Fac. Col. No 20. p. 33.
