Scottish Court of Session Decisions

Subject_1 BLANK WRIT.
Subject_2 SECT III.

Effect of a Blank Writ after the Death of the Proprietor.

Robertson and Ross
v.
Bissets

Date: 25 July 1777
Case No. No 18.

Action found to be incompetent, on a bill found in the repositories of a defunct, blank in the drawer's name.

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Mr Thomas Bisset of Glenalbert accepted a bill for 151. 5s. sterling to Mr Charles Robertson of Balnaguard, as the value of a parcel of sheep, and a small quantity of indigo; but the acceptor died without paying the bill, and after he had disponed his estate to his eldest son. The person to whom the bill was originally granted, died likewise; and his son succeeded to him, under a general disposition to all his effects, being also nominated executor and universal legatee. He indorsed the bill to Mr James Ross, in part payment of an account which he owed him; and, as he found his father had neglected to adhibit his name to the bill, he substituted his own as drawer and indorser. Mr Ross thereupon brought an action against the representative of the acceptor; and Mr Robertson having, in the mean time, paid the account for which the bill was indorsed to Mr Ross, the action proceeded at the joint instance of both. Lord Elliock, Ordinary, upon the 22d January 1777, pronounced this interlocutor:

“In respect that it is acknowledged by the pursuer, that the subscription to the indorsation in his favour, is not the subscription of the drawer of the bill; finds, that no action lies at his instance for payment of the contents of said bill; assoilzies the defender, and decerns.”

In a reclaiming petition for the pursuers, it was stated, in order to obviate any objection which might arise from the circumstance of the action having been brought by Ross the indorsee, that James Ross was only a name; the real pursuer being now Charles Robertson, son and heir to the person in whose favour the bill was granted. The merits of the cause were argued at great length in this petition. It was said, That, all over Scotland, the lesser proprietors of land, the farmers, the lower manufacturers, and country people, look upon themselves as perfectly secure, if they have their debtor's acceptance to a bill, or writing resembling one, in which the sum of the debt is particularly specified: That this belief was even founded upon the acknowledged principles of law, and the decisions of the Court; which, from the judgment of the House of Lords, anno 1747, (see p. 1630.) in the case of Rigg of Morton, down to the date of the statute 12th Geo. III., had sustained bills as permanent securities for money, and allowed interest upon them as such: That there were, therefore, two different species of bills known in our law; the one, a bill of exchange, used among merchants, and regulated by the law of merchants; the other, an inland bill, a form of security used amongst people not versant in trade, intended as a document of debt, subsisting for a period incompatible with the nature of a bill of exchange, and bearing interest from the operation of the law, which no bill of exchange does till dishonoured: That, as law allowed the drawer to sign at any time he thought fit, his signature could not be reckoned essential to the completion of the bill; the acceptor remained bound, in the mean time, by his own signature, and could not be liberated by the accidental circumstance of the drawer's death: That the father, the original drawer, could have signed the bill quandocunque; and the son having succeeded to it as it stood when the father died, he must be entitled equally as the father, to complete the writing by his subscription: And that our lawyers had laid down erroneous opinions upon this point, from not attending to the above distinction between inland and foreign bills; but no opinion, however respectable in other matters, will ever induce mankind to subscribe to a doctrine, which seems to revolt from every idea of justice; and which involves in consequences, that may prove fatal to the fortunes of even the most opulent. The petitioners put a great variety of cases to illustrate and support their argument. They figured a merchant, a dealer in bills of exchange, sending his clerk with money to a neighbouring merchant, to purchase bills to be transmitted abroad: They figured the clerk paying the money, getting the acceptances blank in the drawer's name, to be filled up at the time of the remittance, but, on return to his master, finding he had died suddenly. They figured a bill drawn in favour of a third party, upon one who, on a demand made, refused to accept; and as a bill, in such circumstances, though unsigned by the acceptor, was still effectual against the drawer for recourse, and also against the acceptor, to the effect of carrying any funds of the drawer in his hands, they argued in favour of a bill incomplete in another way, viz. by wanting the drawer's signature, being a good ground of action against the acceptor. The case of one Cameron, (not reported,) was referred to, where, in 1775, it was said, the Court had sustained action on a bill blank in the drawer's name.—The Court, on advising this petition, with an answer, adhered to the interlocutor of the Lord Ordinary.

*** The particulars of this case are stated in the Session Papers of the case which follows.