How far the granting of a Blank Writ Implies Renunciation of Exceptions.
Alexander Pagan and James Hunter v. Alexander Wylie
Date: 19 June 1793 Case No. No 5.
When a bill already accepted and and indorsed is fraudulently altered from a smaller to a larger sum, in consequence of a blank being left in it, and is afterwards discounted, all the persons whose names are upon it are liable for the full sum which the discounter bona fide paid for it.
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A holograph bill drawn by John March, after being accepted by James Hunter, and indorsed by Alexander Pagan, was put into the hands of the drawer, in order to raise money on it, who, there was reason to believe, taking advantage of a blank in the body of the bill, fraudulently altered its amount from eight to eighty-four pounds Sterling, by adding the letter y to the end of the word eight, and the word four immediately after it.
The part thus added had rather a crowded appearance, and seemed to be written with different ink, but in the same hand with the rest of the bill.
After this operation, March discounted the bill for its full value with Alexander Wylie, agent at Dumfries for the Paisley Union Bank.
Before the bill became due March had fled the country.
Wylie having charged Hunter and Pagan for payment of the L. 84, they obtained a suspension, and the Lord Ordinary afterwards reported the cause, on informations.
The arguments of the bar were in a great measure confined to the special circumstances of the case. In particular, the charger endeavoured to establish, that Hunter and Pagan had been in the practice of intrusting March with bills, blank in the sum, leaving him to fill it up as occasion should require; and from that, and a variety of other specialties, he contended, that they were liable for the full sum for which he had bona fide discounted it.
The suspenders endeavoured to obviate the conclusions drawn from these facts, and at the same time to assimilate the fraudulent interpolation to the case of forgery or vitiation; and thence they argued: 1st, That the alteration being a vitium reale, the bill could not be sustained as a document of debt: 2dly, That as the alteration was visible, Wylie was equally negligent in not discovering it, as they were in putting their names to a bill with a blank in gremio; and that therefore both parties being in pari casu, where the loss had fallen, there it must remain.
The Court, waving the specialties which occurred in the cause, went upon the following grounds. Where a blank is left in a bill, sufficient to admit the insertion of part of one word, and the whole of another, as in the present case, any person who puts his name upon it, whether as drawer, acceptor, or indorser, and trusts it in the hands of another, and particularly of the person by whom it was written, in order to its being passed by him into the circle, must be liable for the consequences, in the same manner as if it had been left blank in the sum altogether, it being nearly the same thing, whether the blank be total or partial. And although, upon a narrow inspection, a small crowding of the letters, and some little difference in the colour of the ink, might have been perceived, both were too trifling to put the discounter on his guard; even if he had hesitated, and made enquiry into these circumstances, he might have been told, without putting him in mala fide, that there had been originally a blank left, in order to be filled up with the sum which might be wanted. The circumstance of leaving a blank must be held as a tacit mandate from the parties whose names were upon the bill, intrusting the holder with the power of filling it up; and therefore the present case differs widely from a forgery or vitiation, for there one writing is converted into another, without the consent of the parties, either express or implied.
The Lords unanimously ‘repelled the reasons of suspension.’
Lord Ordinary, Dregborn.For the Suspenders, R. Hamilton.For the Chargers, D. Cathcart.Clerk, Menzies.
Fac. Col. No 62. p. 136.
