Scottish Court of Session Decisions

The late Joseph M'Laren was a farmer and innkeeper at Amulree. After his death Alexander Fisher raised an action before the Sheriff of Perthshire, against his widow, Mrs Janet Campbell or M'Laren, as having intromitted with his effects, concluding for payment of various sums, and inter alia the sum of £100, contained in the following document:—

“ Creiff, 26 th May, 1832.

“I acknowledge to have received from Mr Alexander Fisher, and in behoof of his son, John Fisher, heir to the said Alexander, the sum of £100 sterling, to be sunk in the stock of Amulree farm, occupied by me, and for which sum I hereby become bound, my heirs, and executors, to refund to them, with interest yearly from this date.

“ Joseph M'Laren.”

At the date of this document, John Fisher, the son of Alexander, was a boy of about six years of age. The document was written on a bill-stamp of 4s. 6d., bearing to have been affixed on October 17, 1833, and corresponding in amount to the sum of £100, on a bill payable at a date exceeding sixty days. In defence against the action it was pleaded that the document was not executed earlier than November, 1833; that the signature of Joseph M'Laren was a forgery; that the writ was not a bill but a bond, and bore an improper stamp, and was not duly tested. The pursuer judicially abided by the writ as genuine. He admitted that the date on the document was not the true date when the document was executed, which, he said, was November, 1833; but he alleged that when Joseph M'Laren left Creiff and took a farm at Amulree, to which his entry was at Whitsunday, 1832, he, Fisher, had advanced the sum in question to him, and the date on the document was the true date when the money was so advanced. He averred that the document, both as to its date and whole tenor, was holograph of M'Laren. The Sheriff allowed Mrs Campbell or M'Laren to authorize the charge of improbation as required by the Sheriff-Court Act of Sederunt, and to consign £3 in so doing. She failed to qualify herself for improbation; and the Sheriff, holding the writ as genuine, found that it was a holograph bond, and valid if duly stamped as such. The pursuer paid the penalty, and got it duly stamped, after which the Sheriff decerned for payment. Mrs Campbell or M'Laren brought an advocation of this process, and also raised a reduction of the document as being forged, or improbative and ineffectual. In this action she called as a defender Alexander Fisher alone. The sixth reason of reduction was, that the document, even if binding, was not in favour of Alexander Fisher, but his son John, and therefore Alexander had no title to pursue in the inferior Court. This reason was afterwards withdrawn, as being irrelevant in a question of the reduction of the document itself. The process of advocation was conjoined with the reduction, and Mrs Campbell or M'Laren then pleaded, inter alia, 1st, That by the conception of the document libelled on in the inferior Court, it was John Fisher, the son of Alexander, who was the true creditor, if any thing was due; and as the summons set forth no instance, save that of Alexander Fisher, suing on his own account, it was defective, and the decree in favour of Alexander Fisher was unwarrantably pronounced. It was competent to state that plea as supporting the advocation of the Sheriff's decree, though it was not relevant to state it as a reason of reduction. 2. As the date of the document was confessedly false, that alone vitiated it in essentialibus, and rendered it not actionable. But further, it bore ex facie a stamp which was expressly appropriated to bills; and by 55 Geo. III., c. 184, § 5, it was provided “that no vellum, parchment, or paper, bearing a stamp appropriated by name to any particular instrument, shall be used for any other purpose; or if so used, the same shall be of no avail.” The defect which was thus inherent in the document, under the Stamp laws, was not only originally fatal to it as a bond, but was afterwards incurable. 3. The document was not holograph, and being therefore improbative, could not support any action.

Alexander Fisher, in his defences, besides contending that it was now too late to object to the title set forth in the inferior Court, especially after the pursuer's withdrawal of the sixth reason of reduction, pleaded, 1st, That he was himself the true creditor in the obligation. The document was inter rusticos, and having been wholly framed by the late Joseph M'Laren, neither he, nor his relict as representing him, could be favourably listened to, in attempting to give it a legal effect at variance with the true intent of the parties. The words inserted relative to the defender's son, John Fisher, were merely meant to point him out as heir of the defender, in the event of the defender's death, and certainly were not meant to divest the defender of so considerable a portion of his funds. John Fisher was then a boy of six years of age, wholly without funds; the sum was advanced by the defender himself alone; and the document specified John merely as the “heir” of Alexander, and took M'Laren bound “to refund to them,” meaning to Alexander and John, according to their respective interests; and the interest of John as “heir,” did not emerge till after Alexander's death. The title libelled was therefore sufficient: but, separatim, as John was still a minor, and Alexander, his father, was his administrator-in-law, the title libelled was on that ground also sufficient. 2d, The date was not inter essentialia of the document in question. ¹ The fact that a bill stamp was originally on the paper did not make it worse than if it had borne no stamp at all. It had received the appropriate stamp for a bond, and paid the penalty just as if it bore no bill stamp at all, and the provision of the stamp act, § 5, did not interfere with this.

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¹ 3 Ersk. 2, 18.

3d, The entire document was holograph of M'Laren, and therefore binding.

In making up a record, the pursuer averred in articles 3d and 4th of her condescendence, that the paper on which the document was written, bore the water-mark of 1833, and that the bill-stamp was of a new die which had not been issued till towards the end of 1833. Fisher answered, that he had admitted the actual date of the execution of the document to be November, 1833; but that the date was not inter essentialia.

The Lord Ordinary “having heard counsel on the conjoined processes of advocation and reduction, in so far as these are now insisted on—1mo, Repels the objection stated—for the first time in this Court—to the title of Alexander Fisher to pursue the action in the inferior Court, and finds that, by the conception of the obligation granted by the defender's husband, Joseph M'Laren, and libelled on in the summons before the Sheriff, the said Alexander Fisher is entitled to sue for, uplift, and discharge the sum contained in the said obligation: 2do, Finds, that as the said obligation is alleged to be holograph of the said Joseph M'Laren, the allegations in the 3d and 4th articles of the revised condescendence, intended to show that the said obligation, acknowledging receipt of £100, bearing date 26th May, 1832, was, in point of fact, written out posterior to 17th October, 1833, are not relevant, either to sustain a charge of forgery or of legal falsehood, or to annul on any other ground the said obligation, if it shall be proved that the obligation is truly holograph of the said Joseph M'Laren, in respect that debtors in such obligations are entitled to antedate them, in order to adapt them to the transaction which they are intended to vouch, and to deliver them of such dates as may seem to them proper; and no relevant ground is assigned for suspecting any mala fides in antedating the said obligation in the present instance: But, before further answer (as the pursuer of the reduction has declined to admit that the document libelled on was holograph), appoints the cause to be enrolled, in order that it may be settled in what manner the state of the fact on that point may be ascertained.” ^*

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^* “ Note.—There has been much litigation as to this and other claims at Fisher's instance against M'Laren; and the defenders (in the original action) have departed from most of the pleas at first indicated. They now limit themselves to the two defonces disposed of by the preceding interlocutor.

“1st, The first turns on the right of Alexander Fisher to pursue in his own name for payment of the £100 contained in the obligation dated 26th May, 1882. By that document, M'Laren, the debtor, acknowledged that he had received £100 ‘from Alexander Fisher, and in behoof of his son, John Fisher, heir to the said Alexander,’ which sum the debtor bound himself ‘to refund to them,’ with interest. Now, it is thought that this was just an obligation whereby the son was substituted to the father, if the son ever was heir. The obligation, too, was not to repay the son exclusively; that might have altered the case; but to refund the money ‘to them,’ which must be construed to mean the parties respectively, as the case might be at the period of demand, i.e. to the father, as fiar, if he then was in life, and to John, the heir, if his father was dead. Every presumption of law, as well as of practical sense, militates against the idea of the father intending to divest himself of his right of disposing of this or any part of his funds during his life.

“Accordingly, the M'Larens, the pursuers of the reduction, have shown clearly what was their own impression as to this obligation, as the reduction is brought against Alexander Fisher, the father, alone, and not against the son. If their plea against the title of Alexander Fisher, as pursuer of the ordinary action before the Sheriff, were well-founded, the reduction-improbation raised by themselves against Alexander in this Court would fall to be dismissed with expenses, as raised against the wrong party.

“2d, The plea of the pursuers of the reduction, founded on the alleged falsehood of the date, appears to be equally untenable. It has been repelled on this ground, that every debtor is entitled so to date his obligations as to make them correspond with the real period of any transaction which they are intended to vouch. This has been long laid down in the case of bills, both in Scots and English law. In these, it is now a recognized maxim, that the date is not essential; and a noted case is often referred to in English practice, where a party postdated a bill, and died before the date filled in. Yet the bill was found recoverable by his heirs. Passmore, 13 East. 517, and the Cases mentioned in Thomson on Bills, p. 60–70.

“There are, indeed, some limitations, by statute, to the power of postdating bills, as such practice might interfere with the stamp laws, and the operation of the statute of limitations; but those considerations do not apply to obligations antedated, which are, of course, more open to any plea of prescription than if they bore the actual date of subscription.

“If date, however, be not essential in bills, the same rule applies to other obligations.—See case of Smith, in House of Lords, 2d Shaw's Appeal Cases, p. 265, where the allegation, that a bond of caution, though signed before witnesses, bore a false date, was disregarded.

“Still more, however, is the allegation irrelevant here, where the obligation is alleged to be holograph. If it be holograph, then it is connected by evidence under M'Laren's hand, with that person's entry to the farm of Amulree, which it does not appear to be disputed that he got possession of at Whitsunday, 1832. That very circumstance satisfactorily explains the reason of his making the voucher bear the date it does; and it seems to the Lord Ordinary that it would be alike contrary to every principle of law and of common justice to admit any objection in the present case founded on the date affixed by the debtor himself to this holograph document, which he seems to have delivered to an onerous creditor for value.”

Mrs Campbell or M'Laren reclaimed.