Scottish Court of Session Decisions

This was a reduction of certain interlocutors of the Sheriff-Substitute of Lanarkshire at Airdrie (Mr Logie), and of the Sheriff (Sir A. Alison).

The pursuer's wife was a daughter of the late Mrs Agnes Rankin or Brown residing at Chapelhall. The defender Mrs Johnston was her sister. By her settlement Mrs Brown conveyed to the pursuer and certain other trustees, who did not accept, her whole means and estate, with directions to divide the residue into five equal parts, one of which was to be paid to the pursuer's wife and another to Mrs Johnston.

In 1864 the defenders Mrs Johnston and her husband raised an action of count and reckoning against the pursuer in the Sheriff Court, in which they claimed £30 as Mrs Johnston's share of the residue. The pursuer averred that his whole receipts

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from the estate amounted to £76, 18s. 4d., while his disbursements amounted to £79, 6s. 8d., so that there was a balance due to him by the estate of £2, 18s., 4d. But in bringing out this balance he credited himself with a sum of £50 contained in an acceptance by Mrs Brown to him dated in 1859; and in regard to it it was averred by the Johnstons—“The said bill or acceptance is false, forged, fabricated, vitiated, and erased, in substantialibus, and of false date;—at the time it bears to have been granted, the truster was in a state of both mental and physical imbecility, and it was not signed by her. The said Archibald Lamont did not advance or pay to the truster the said sum of £50, and she was not due to him, at the time of her death, the said pretended bill or acceptance, or any sum whatever.”

The Johnstons thereafter lodged a minute in which they proponed improbation of the said bill, and a proof having been led, the Sheriff-Substitute pronounced this interlocutor:—“Having heard parties' procurators on the import of the concluded proof in the improbation, and made avizandum with the cause: Finds it proved that the words ‘Agnes Rankin’ are not the genuine signature of the late Mrs Agnes Rankin or Brown to the bill dated 25th August 1859, and forming No. 9/11 of process, the hand of the said Mrs Agnes Rankin or Brown having been led by William Lamont, defender's son, at signing said bill, and therefore improbates said bill quoad Mrs Brown's alleged signature as acceptor: Grants warrant to and authorises the Clerk of Court to pay over to the pursuer the sum of five pounds sterling consigned by her in the improbation, and decerns.” An appeal against this interlocutor was dismissed by the Sheriff.

An accounting thereafter was gone into on the footing that the pursuer was not entitled to take credit for the £50; and ultimately the Sheriff Substitute decerned in favour of the Johnstons for £14, 13s. 9d., as their share of residue, and £16, 0s. 2d. of expenses of process. This decree having been extracted, the pursuer was incarcerated thereon on 8th August 1865, and he has been in prison ever since. The pursuer having brought this action of reduction, the defenders pleaded as a preliminary defence that the pursuer was barred from suing the action, in respect of his having, when in prison, executed under the Act of Grace a disposition omnium bonorum in favour of the female defender for behoof of herself and of all his other creditors. The Lord Ordinary (Kinloch) repelled this plea, and his interlocutor was acquiesced in.

Thereafter a record was made up and closed, and after a debate the Lord Ordinary pronounced the following interlocutor:—

Edinburgh, 20 th March 1866.—The Lord Ordinary having heard parties' procurators, and made avizandum, and considered the proceedings, finds it proved that the signature ‘Agnes Rankin,’ on the bill No. 31 of process (No. 9/11 of Sheriff Court process), was adhibited by the act of William Lamont leading the hand of the deceased Mrs Brown: Finds it proved that the said deceased Mrs Brown instructed the said bill to be drawn out in order to be subscribed by her; that she authorised the said William Lamont to lead her hand in subscribing the same, and that she thereafter acknowledged the bill as granted by and binding on her: Finds, in point of law, that, in these circumstances, the said bill was a valid document of debt against the said Mrs Brown and her representatives; and that the pursuer, Archibald Lament, is entitled to take credit for the amount of the same, with interest, in accounting with the defenders for his intromissions with her estate as her trustee: And appoints the cause to be enrolled, in order to judgment being pronounced therein in accordance with these findings.

W. Penney.

Note.—The Lord Ordinary thinks it proved that the hand of Mrs Brown was led by William Lamont when her signature was attached to the bill; and if the case was that of a probative instrument, unsupported otherwise, the Lord Ordinary would have no doubt that the signature was invalid, and the instrument ineffectual.

But the case is that of a bill; and must be so dealt with. The Lord Ordinary considers it proved by the evidence of William Brown, the son of the deceased, and who, for aught that appears, stands indifferent between the parties, that his mother instructed him to get the bill drawn out by Mr Torrance, writer in Hamilton; saying that she had got the loan of money from the pursuer's wife, and mentioning £50 as the sum to be put in the bill. He adds—‘She had all her faculties and memory at that time.’ It is further proved, as the Lord Ordinary thinks, that, after bringing the bill so drawn out to the pursuer's house, Mrs Brown asked the pursuer's son, William Lamont, to lead her hand; and the signature as it now appears was adhibited in this way, with her full assent and authority. The bill is signed ‘Agnes Rankin,’ and not Agnes Brown; but the deed, of which No. 35 is a copy, shows that she sometimes signed by her maiden name even in a probative instrument. It is proved by William Brown that she afterwards said—‘She had made defender all right now;’ which can only be attributed to the transaction of granting the bill. Robert Martin, who was married to a granddaughter of Mrs Brown, depones that ‘she said she had got the loan of money from defender's, wife, and that she saw her time was coming to an end; and that she was anxious to settle up with defender; that she got her son William to get a bill drawn out by Mr Torrance, of Hamilton; and if she had it once signed she would be at peace. She also said on another occasion, a few days thereafter, that she had got the bill signed. She also said that William Lamont was present, Mary Graham, and defender's wife. This second conversation took place in her own house. She said she had given the bill to the defender.’ Janet Graham gives corroborative evidence.

The Lord Ordinary considers this sufficient to set up the bill as a valid document of debt. It is trite that a signature, which would be held invalid in a formal instrument, will be effectual on a bill, if proved to have been authorised or adopted by the party whose signature it is. A bill may in such circumstances be effectually signed by a mark, which is, properly speaking, no signature at all. Even a forged signature may become effectual by adoption. If one person sign another's name (which is very common amongst uneducated, and sometimes done even by educated persons), that other will be bound by the subscription, if proved to have authorised it. The authority by Mrs Brown to the bill being signed as her bill, and her approbation of the signature afterwards, seem to the Lord Ordinary undoubted. If William Lamont had with his own hand written the words ‘Agnes Rankin,’ this would have been enough to bind Mrs Brown, if done by her express authority. The Lord Ordinary cannot see that the case is different because the words were written by Mrs Brown's hand, led, at her request, by William Lamont.

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It was said that there was no evidence of the pursuer having been in circumstances to make the alleged advances. This would be at best a presumption merely. But, in point of fact, there is evidence, not merely that the pursuer or his wife had means out of which an occasional advance might be made, but that such advance was actually made by them to Mrs Brown. Mrs Brown herself said so; and there is direct corroboration of the statement in the testimony of Robert Martin.

The Lord Ordinary is of opinion that the defenders have entirely failed to establish that Mrs Brown was in such a state of mind as to incapacitate her from engaging in such a transaction.

It was pleaded that, at all events, the bill could only be regarded as constituting a legacy, and was therefore ineffectual. But the Lord Ordinary cannot accede to this view. The bill is accepted as payable ‘three days after date,’ and as granted for value received. It might therefore have been put in force against Mrs Brown during her life. However the pursuer might feel barred in honour from so enforcing it, the Lord Ordinary cannot give to any surmise on this subject the effect of nullifying the express terms of the instrument.

“W. P.”

The defenders reclaimed.

Strachan, for them, argued—The Sheriffs were right in improbating the bill as not bearing the genuine signature of Mrs Brown. It was established, in point of fact, that the signature was adhibited by leading the hand; and it was not disputed that in the case of an ordinary probative writ this signature would be bad. But such a mode of subscription was not sanctioned by custom or recognised by the Court in the case of bills any more than of probative writs. Wherever it has been dealt with by the Court it has been repudiated as a nullity, and in the absence of authority to the contrary this must be held to apply to bills. In place, therefore, of there being a genuine signature to the bill in question, it stood in the same position as if it had never been subscribed. Then it was established that no value had been given for the bill, and that the granter, who had been paralytic for years and was almost blind and weakminded, did not understand the nature of the transaction. The same principle applied here as ruled the decision in the case of Pringle, M. 16810, where the bill was held to be invalid. But it was said that this would have been a good bill if, in place having her hand led, Mrs Brown had given instructions to sign for her. What difference then did it make that the letters were formed by leading her hand? There were various important distinctions between the two cases. Signing by procuration was well known and recognised by the Court, while subscription by leading the hand was repudiated as a nullity. In the one case there was a signature rendered binding by proof of authority, in the other there was in law no subscription. There was an intelligent expression of the will in the giving of authority, but not in the mechanical formation of what, to a person who cannot write, must be unintelligible characters. To sanction the innovation proposed by the pursuer would give facilities not for commercial transactions but for fraud and circumvention.

Scott, for the pursuer, was not called upon.

The Court unanimously adhered, with expenses.