Scottish Court of Session Decisions

Lord Kinnear—This is a suspension at the instance of Duncan M'Intyre, a farmer in Islay, of a charge by the National Bank to make payment of a sum contained in a bill purporting to be drawn by the complainer upon and accepted by Dugald Campbell, farmer in Islay. The question so raised is a question of fact; but there is one preliminary question of law, namely, whether the burden of proof lies upon the one party or the other, which is important in a case of this kind, where the evidence is so evenly balanced.

The Lord Ordinary has expressed his opinion upon that point, saying that the onus lies upon the chargers to prove affirmatively that the signatures upon the bill purporting to be those of the complainer were in fact adhibited by him. I do not understand that the law so laid down by the Lord Ordinary—in which I entirely concur—was very seriously disputed. But at the same time, since we are referred to a decision which was said to be to the contrary effect, in the case of Gellatly v. Jones, I observe upon the dictum of Lord President Boyle, which was cited as inconsistent with the Lord Ordinary's law, that that supposed dictum does not appear to me to be of weight as an authority for the decision of any other case or for any purpose except that for which it may have been used in the case in question. It is to be found in a very imperfectly reported charge to a jury, and it follows that the learned Judge did not intend to enunciate a general principle for the determination of other cases, but simply to instruct the jury in the law by which they must be guided in the decision of a particular question of fact. Every observation of that kind is to be understood with exact reference to the specific facts which have been proved in the particular case, and we know nothing about the facts in the case cited.

The observation of the Lord President, if we are to assume that he made it in the terms quoted in the report, we must also assume to have been perfectly right for the particular purpose for which it was made. But then the onus of proving or disproving the genuineness of a document must depend upon the conduct of the parties with reference to it, and it may be perfectly right at a certain stage of a particular case that the person who impugns a document should be required to disprove it, although in general one cannot be required to prove a negative. Therefore I cannot take the dictum imputed to Lord President Boyle as in any way conflicting the principle of our law, which I think to be settled, and which is in accordance with justice and good sense, that the person who proposes to put in force a written instrument which is not in itself probative must prove it to be genuine if its genuineness is disputed; and I think the burden of that obligation is the more imperative in this case, because the chargers by their conduct in discounting the bill without an inquiry which they might reasonably have made, or by the conduct of their agent for them, have taken the risk of a controversy which need never have arisen.

The bank agent says in his evidence that when the bill had become due, the complainer being called upon to pay denied his signature, and that he went to see the acceptor of the bill, Dugald Campbell, who resided in the district, taking with him the bill in dispute and one of the former bills; and he is asked why he took the former bill and he says, “Because I noticed the bill was not in his usual signature when I compared the two after Macintyre left. I compared the disputed bill with the previous bill, and noticed that the signature was not the usual signature. It was apparent to anyone familiar with his usual signature.” Now I do not refer to that as evidence that the signature in question is not the signature of the complainer. I refer to it only for the purpose of observing that it appeared to the bank agent to be different from the complainer's usual signature, and that it appeared to him that the difference was such as to be obvious to anybody that was familiar with the complainer's writing. Therefore this litigation need not have arisen if the bank agent had paid the same kind of attention when the bill was presented for discount as he did afterwards when its genuineness was disputed, and had inquired of Macintyre whether he admitted the signature or not, and had acted upon his admission or denial by discounting or refusing to discount the bill.

The result is that the chargers have to prove after the lapse of many months that the signature was really adhibited by the complainer.

[ His Lordship then examined the evidence, and came to the conclusion that the reclaimers had not discharged the onus upon them.]

The Lord President concurred with Lord Kinnear as to the onus of proof, and after examining the evidence came to the same conclusion.

Lord Johnston also concurred as to the onus of proof, but came to the conclusion that the onus had been discharged.

Lord M'Laren was absent.