Action refused on a bill where the date appeared ex facie to have been altered, though it did not appear by whom, or for what purpose the alteration had been made.
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William Murchie, on the 4th July 1793, remitted to the agents for the Paisley Union Bank, at Newton-Douglas, to be placed to his credit, when paid, a bill drawn by John Caven, accepted by William Alexander, and indorsed by Caven, John Crosbie and John Macfarlane, dated 17th June 1793, and payable two months after date. On the 5th July, the agents for the Bank wrote to Murchie, acknowledging receipt of the bill, and mentioning, that it would be payable on the 20th August; and it was accordingly marked, ‘17th-20th August’, by one of the clerks.
The bill was protested for non-payment, on the 20th August, and the dishonour immediately intimated to all concerned; and particularly to Macfarlane; who, having afterward been charged for payment of it, raised a suspension; in which, inter alia, he stated, That the bill, when he indorsed and returned it to the acceptor, for whose accommodation it was executed, was dated 7th June: That the figure ‘1’ was, ex facie of the bill, an after operation, performed perhaps by the acceptor, in order to postpone the term of payment, or, by the charger, at his desire; and he proposed, that all the parties, concerned in the bill, should be examined, in order to expiscate the fact.
From this statement, he inferred, that the letters should be suspended: 1mo, Because, according, to its proper date, the bill had not been duly negotiated. 2do, Because the bill being ex facie, a vitiated document, no action could be sustained upon it; 4th vol. Termly reports, 1791, Master and Others against Miller; unless, upon the principle of the decision, 27th January 1795, Gillespie against Graham, No 53. p. 1453, the charger could establish, both that he was in bona fide, to receive the bill as a true document, (which, from the obviousness of the interpolation, he could not); and that the mistake had been occasioned by some fraud or negligence of the suspender, which was not alleged.
The charger, on the other hand, admitted, that the figure ‘1’ had a different appearance from the rest of the bill; but he objected to the competency of the examination proposed; and contended, that, in the circumstances of the case, the alteration could not affect the validity of the bill, in a question with him, an onerous indorsee: That a vitiation in a document is presumed fraudulent, and renders it null, only where the holder of it can reap some benefit from the alteration; (See Presumption, Vitiated, Writs.) but that from its being established, that the bill bore its present date so early as the 4th July; a period at which the charger could have no interest to make the alleged alteration; the sole effect of which was to postpone the term of payment; it must be presumed to have been made by some of the obligants in the bill before they quitted possession of it.
The Lord Ordinary sustained the reasons of suspension; and, upon a reclaiming petition, with answers, the Lords, almost unanimously ‘adhered.’
Lord Ordinary, Swinton.For the Charger, Hay.Alt. Turnbull.Clerk, Home.
Fac. Col. No 228. p. 530.
*** A case, of very similar circumstances, was decided by Lord Kenyon in the same manner, in December 1801. See Appendix.
*** See Shepherd against Innes, voce Apprentice, p. 589.
