Scottish Court of Session Decisions

Subject_1 BLANK WRIT.
Subject_2 SECT III.

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

Fair
v.
Cranston

Date: 11 July 1801
Case No. No 19.

The representative of a person, in whose repositories was found a bill blank, in the drawer's name, was found entitled to insert his own name as drawer.

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There was found in the repositories of James Fair, agent for the British Linen Company at Jedburgh, deceased, a bill at three days date, for L. 40, blank in the drawer's name, subscribed by three acceptors, of whom Robert Cranston was one. On the back was marked a receipt for L. 15.

William Fair having been confirmed executor to the deceased James Fair his father, inserted his own name as drawer, and brought an action against Cranston, in which he obtained decree in absence. Cranston having attempted a suspension, Lord Cullen found the letters orderly proceeded. On advising a representation, with answers, his Lordship pronounced this interlocutor: ‘In respect it is clearly proved, by the excerpts from the books of the late Mr James Fair that the bill in question, dated the 11th day of June 1793, payable three days after date, was granted for the sum of L. 40 Sterling, then advanced by him to the suspender, and the other acceptors of that bill, and that a partial payment of L. 15 Sterling was made upon the 17th of September thereafter, and which partial payment is marked on the back of said bill; and further, although the said James Fair omitted to subscribed his name as drawer, and that it remained in that situation till his death, in the year 1796; yet, as the present charger, his son, has expede a confirmation as executor to him, and has thereby vested in himself a right to the said bill, and adhibited his name as drawer, before producing the same in judgment: Therefore, adheres to the interlocutor complained of, and refuses the desire of the representation; but supersedes extract till the third sederunt day in May next.’

The cause was brought before the Court by petition; in which it was pleaded, That the bill must be considered as blank in the creditor's name, and therefore void and null; Erskine, b. 3. tit. 2. § 28.; Macraith against Murdoch, No 37. p. 1436.; Walkingham against Campbell, No 23. p. 1684.; Douglas and Wood against Logan, No 41. p 1438.; Cathcart against Representatives of Dick, No 42. p. 1439.; Robertson and Ross against Bisset, No 18. p. 1677.; act 1696, cap. 25.

It was further pleaded, That the writing founded on being defective as a bill, could not be sustained on any other footing, as a voucher of debt, It was not a bill, because not a mandate. It was no promissory note, because it contained no promise to pay. It was not a deed, because it had not the statutory solemnities: And it was not holograph of Cranston.—The confirmation conveyed the document, such as it was; but it could not make it better; Erskine, b. 3. tit. 2. § 28.

The Court refused the petition without answers.

A second petition was likewise refused without answers.

The Court Were neatly unanimous. It was observed on the Bench, That from the books of the deceased, and the partial payment, it was evident who was meant to be drawer, which was sufficient in an action for payment of the debt, which this was, not a charge upon the bill. It was likewise said, that a blank acceptance, found in the repositories of a defunct, may be filled up by his representative, and diligence may proceed in his name.

For Pet. John Clerk. Agent, Wm Riddell, W. S. Clerk, Home.