Scottish Court of Session Decisions

John Blair and William Morrison carried on business in Glasgow as calenderers, under the firm of “Blair and Morrison.” Blair died in 1814. Previous to 1823, his son, Robert Blair, became a partner with Morrison in the concern, which continued to retain its original firm. The company was in existence in March, 1823. Some months after this, Morrison died insolvent; and, in the course of a short time, Robert Blair also died.

In 1830, an action was raised before the Magistrates of Glasgow, by the respondent, William Bryson, manufacturer there, against the advocators' representatives, some of them of John Blair, and others of Robert Blair, founded on a bill for £200, dated 12th March, 1823, and payable at four months, apparently drawn by “Blair and Morrison,” upon the respondent, and accepted by him. Bryson likewise founded on and produced the following letter, of the same date:—

“To Mr William Bryson.

“Sir,—We acknowledge to have received from you your acceptance for £200, at four months, of this date, for which you have received no value, and which we promise to retire when due, and return to you. We are, Sir, your most obedient servants,

(Signed) “ Blair and Morrison.”

The action concluded for payment of the £200 in the bill. The advocators having denied that the debt was a company debt, or one for which either John Blair or Robert Blair was liable, the Magistrates allowed a proof; from which it appeared that the subscription of the firm of Blair and Morrison on the bill, and relative letter were not in the handwriting of Robert Blair; that in the company books of Blair and Morrison there was no entry regarding the bill, although there was an account with Bryson coming down to May, 1823, but in a private book kept by Morrison, there was such an entry; that between Bryson and Morrison, in his individual capacity, there had been many similar bill transactions; and that, upon Morrison's death, Bryson ranked as a creditor upon his individual estate.

The Magistrates, on advising the proof, found the libel sufficiently instructed, upon which Mrs Blair, &c. advocated, and pleaded, inter alia, that this was a private transaction between the respondent and Morrison; that the letter was not genuine; and, as the bill in question was payable in July, 1823, and the claim was not made till 1830, after all the parties who could throw light on the transaction were dead, the presumption was for payment having been made by the proper debtors on the bill.

Bryson, on the other hand, maintained, that unless it could be shown that this was a fraudulent transaction, the bill and relative letter formed good documents of debt; that it was from no fault of the respondent that the bill was not entered in the company books; and the fact of its being entered in the private book of a partner was not probatio probata against him.

The Lord Ordinary pronounced this interlocutor, adding the note subjoined: ^*—“Finds, that in so far as the summons concludes against certain of the defenders, as representing John Blair, described therein as one of the partners of the company of Blair and Morrison, in whose name the bill was drawn, and obligation libelled on was granted, such conclusion was inept and groundless, in respect it is admitted, that the said John Blair died many years before the date of the transaction, and could not then be a partner of any such company: Finds, that notwithstanding this error, the summons is not altogether incompetent, in so far as it concludes against the advocators, as representing Robert Blair, who is stated to have been liable for the debt libelled, as a partner of the company of Blair and Morrison: Finds it instructed, that, at and previous to the date of the bill and obligation libelled on, there was a company carrying on business by the firm of Blair and Morrison, and that the said Robert Blair was a partner thereof: Finds it also proved, that the defenders, or some of them, do represent the said Robert Blair; but finds it proved, that the subscriptions of the firm of ‘Blair and Morrison’ to the said bill, as drawers, and to the obligation specially libelled on, are not of the handwriting of the said Robert Blair: And Finds, that, in the circumstances of the case, the advocators have produced sufficient evidence that the said bill, accepted by the pursuer, and the said obligation referring to it, though bearing the firm of ‘Blair and Morrison,’ were not made in the business of the said company, but formed part of a series of private transactions between the pursuer and William Morrison individually, which must have been known to the pursuer to be of that description; and finds no evidence, either that the transaction was known to Robert Blair at the time, or that the proceeds of the bill were in any manner applied for behoof of the said company: Therefore, Finds, that neither the bill nor the obligation constitutes any valid ground of debt against Robert Blair or his representatives, however effectual they may be against William Morrison or his representatives: Therefore, sustains the reasons of advocation, advocates the cause, recals the interlocutors of the Magistrates, assoilzies the defenders advocating, and decerns: Finds expenses due, both in this Court and in the Inferior Court, and remits the same, when lodged, to the auditor to be taxed.”