Scottish Court of Session Decisions

Subject_1 PART I.

BILL OF EXCHANGE.

Charles Robertson of Balnagaird, and James Ross, Writer in Perth,
v.
Dr Charles Bisset.

Date: 25 July 1777
Case No. No. 5.

Whether a bill be actionable when not signed by the drawer, but to which the drawer's son and representative has adhibited his subscription.

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The defences pleaded against the payment of a bill which was not signed by the drawer, but by his son and representative after his decease, were, that the person who subscribed as drawer was not actually the drawer, and that although the subscription of the accepter was confessed; yet, the bill being a false and fabricated instrument could not be made the foundation of any action.

To this it was answered, that in the law of Scotland, there are evidently two species of bills perfectly distinct from each other. An inland bill, before the late statute 1772, was considered as a permanent security, which did not prescribe within 40 years, and accordingly interest then was and still is current upon them as such. Such a bill therefore is principally intended as a document of debt and permanent security; which is perfectly incompatible with the nature of a bill of exchange used by merchants, which is regulated by the laws of commerce, and which does not bear interest till dishonoured.—In the law of Scotland, it is perfectly sufficient if the drawer adhibits his name any time before demanding payment. The natural temper of man always delays what he can so easily do at any time. Matters continue in this situation till the drawer's death transmits to his representative a document of debt, unquestionably good when he was alive, but in a moment rendered ineffectual by his death. Had the subscription of the drawer been absolutely necessary, the law would have required it to have been adhibited at the same time with that of the accepter; therefore it is contrary to justice to maintain that the accidental death of the drawer should liberate the accepter from his obligation. A right which was competent to the defunct when alive, must also be transmitted to his heir and representative, nam hæres est endem persona cum defuncto. It was determined by the Court, 9th December 1775, in the case of Cameron, (not reported,) that action lay upon an inland bill against the accepters, though this bill wanted the pursuer's subscription.

The Lord Ordinary pronounced the following 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.”

To this interlocutor, upon advising a reclaiming petition and answers,

The Court adhered.

Lord Ordinary, Elliock. Act. A. Bruce. Alt. W. Nairne.

*** See No. 18. p. 1676.