Scottish Court of Session Decisions

This was an appeal from the Sheriff-court of

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Inverness, in an action at the instance of William Fraser, innkeeper, Nairn, against the executor of the late John Fraser, farmer, Inverness, concluding for the sum of £31, 5s. 10d., being the amount of a bill drawn by John Fraser upon and accepted by the pursuer, and which bill was a renewal in part of another bill for £50, drawn and accepted by the same parties. The pursuer alleged that he was in the habit of signing accommodation bills for the late John Fraser, and that frequently, for the purpose of enabling John Fraser to discount them easily, they were accepted by the pursuer, and on 12th October 1857 an accommodation bill of this kind was accepted by the pursuer, and discounted by John Fraser. On 5th July 1868 the said bill was taken up, £20 of it being paid by John Fraser, and the bill now sued on being granted for the balance. At the date of signing the £50 bill John Fraser granted to the pursuer his holograph acknowledgment in the following terms:—

“I, the undersigned John Fraser, farmer, Redhill, bind and oblige myself to leave the whole of my effects on the mentioned farm of Redhill, as I had received an accommodation' bill from Mr William Fraser, blacksmith, Newton of Petty, as my own relations has refused the same, to be as per accommodation. This document has been signed in presence of the undersigned witness, Simon Fraser.

John Fraser.

Witness, Simon Fraser.

Redhill, Culloden.”

The bill of £30 was retired by the pursuer on 11th January 1869, and the pursuer now sued the executor of the deceased John Fraser for the amount contained in it.

The defence was that the bill being ex fade the debt of the pursuer, he could only prove that he was creditor in the bill by the writ and oath of John Fraser, and that the document founded on was not a probative writ.

The Sheriff-Substitute ( Thomson) found that the pursuer had proved by the writ of the deceased John Fraser that the bill in question was for his accommodation, and accordingly decerned against the defender. He remarked in this note:—“This case is not without difficulty. The pursuer sues on a bill accepted by himself in favour of the late John Fraser, whose executor the defender is. The presumption on the face of the bill being of course in favour of the pursuer being the debtor and not the creditor, the presumption can be redargued only by writ or oath of the drawer. The latter being dead, there could be no reference to oath; but the pursuer produced a writing alleged to be (with the exception of its date) holograph of the deceased, and was allowed to prove its authenticity, and that it referred to the bill in question. The date he explains as having been somewhat foolishly inserted by himself, being the date of the bill sued on. That bill is shown to be a second renewal of the original bill, which was for a larger sum. The writ must be taken as having no date; and indeed, being holograph, it would not have proved its date if it had had one originally. The evidence supports the pursuer's averments that the document was written by the deceased at the time when the original bill was granted, and that it referred to the bill. The evidence of the banker seems to prove sufficiently that the pedigree of the bill is as the pursuer alleges. In the case of prescribed bills proved by writ to be still in force, it has been held that the writing need not be either holograph or probative, and that it may be shown by extrinsic as well as intrinsic proof to apply to the bill in question.—(See M'Ausland v. Hunter, 1851, 13 D.; Hyslop v. Howden, 1843, 5 D.; Watson v. Hunter Co., 1841, 3 D.; Donaldson v. Murray, M. 11,100.) The Sheriff-Substitute is not aware of any principle on which a stricter rule should apply to writs used as in the present case, than to those used in the question of the sexennial prescription. In both cases they are available as admissions by the party in whose favour the legal presumption happens to exist. The extrinsic evidence of the authenticity of this document, and of its application to the bill in question, is somewhat narrow; and the document itself, being by an illiterate person, is rather obscure; but the Sheriff-Substitute is of opinion that the document thus supported is sufficient to rebut the legal presumption. The fact proved by the banker, that at the time of the original bill being discounted the pursuer had ample funds in the bank, is scarcely admissible, and if it were, might only prove that the bill represented a debt due by the pursuer to the deceased. He might choose to pay in this manner, reserving his funds for some other purpose. It would go far to show, however, if admitted at all, that the bill was not for the pursuer's accommodation.”

The Sheriff-Depute ( Ivory), recalled this interlocutor, holding that the pursuer had failed to prove by the writ or oath of John Fraser that the bill was granted for accommodation of the author: —He remarked in his note:—“The pursuer admitted that as acceptor he was ex fade of the bill the party liable in payment. But he undertook to prove that the bill was truly granted for John Fraser's accommodation, and maintained that the writ No. 5–7 of process was sufficient to establish that John Fraser was the true debtor in the bill. After careful consideration the Sheriff has arrived at the conclusion that the pursuer has failed in establishing this. The writ in question bears a false date. The pursuer admits that he wrote the date upon it, being the same as that of the bill libelled on, viz., 6th July 1868. It appears to the Sheriff that the pursuer in writing the false date tried to imitate the handwriting of John Fraser, and did so for the purpose of making it appear that the bill libelled on was the accommodation bill referred to in the writ in question. The pursuer, however, finding that he could not succeed in establishing this, thereafter led evidence to prove that the document was written not of the date it bears, but in the month of October of the previous year, and that it referred to a totally different bill from that libelled on, viz., to a bill for £50 granted by the same parties in October 1867.

“The Sheriff entertains great doubt whether a document which has been treated by the pursuer in this way can be held of any value whatever as evidence. Further, the document does not refer to or identify the £50 bill as the accommodation bill referred to in it, and it is open to question whether, in such a case as the present, parole proof is competent to supplement what is wanting in the party's writ. But even assuming it to be established by competent evidence that the £50 bill was granted by John Fraser in October 1867 for the pursuer's accommodation, this does not appear to the Sheriff to go any length in establishing that a bill granted in July 1868, nearly a year after the date of the writ founded on, was accepted by the pursuer for a similar purpose. It is no doubt said that the last-mentioned bill was a renewal of the

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former bill. But there is no proof of this by the drawer's writ or oath, and no other evidence is competent. And even supposing that other evidence was competent, there is nothing in the parole proof to show that the bill libelled on was not discounted by the pursuer, and the proceeds applied to his own use, or, if discounted by John Fraser, that the money was not at once banded to the pursuer. The bill bears to have been accepted by the pursuer ‘for value received,’ and the legal presumption is that the acceptor received the money as the value in respect of which he accepted. On the whole, therefore, the Sheriff is of opinion that the pursuer has failed to prove that the bill in question was granted for the accommodation of John Fraser.”

The pursuer appealed.

Reid for him.

Mackintosh in answer.