Anderson v Somerville, Murray, & Company
| Jurisdiction | Scotland |
| Judgment Date | 24 November 1898 |
| Date | 24 November 1898 |
| Docket Number | No. 19. |
| Court | Court of Session |
Lord Kincairney, Lord Young, Lord Moncreiff, Lord Justice-Clerk.
Bill of Exchange—Bills of Exchange Act, 1882 (45 and 46 Vict. cap. 61), sections 20 and 100—Inchoate Instrument—Blank Stamp signed and delivered—Proof—Onus of Proof.—
The Bills of Exchange Act, 1882, enacts (section 20)—‘(1) Where a simple signature on a blank stamped paper is delivered by the signer in order that it may be converted into a bill, it operates as a prima facie authority to fill it up as a complete bill for any amount the stamp will cover, using the signature for that of the drawer, or the acceptor, or the indorser. … (2) In order that any such instrument when completed may be enforceable against any person who became a party thereto prior to its completion, it must be filled up within a reasonable time and strictly in accordance with the authority given. Reasonable time for this purpose is a question of fact.’ It is further provided that if any such instrument is negotiated to a holder in due course, it shall be valid in his hands, and he shall be entitled to enforce it as if it had been completed within a reasonable time and strictly in accordance with the authority given.
In a suspension brought by the granter of a blank bill against the original holder on the ground that the bill had not been filled up within a reasonable time and in accordance with the authority given, held (rev. judgment of Lord Kincairney) that the onus of proof lay on the complainer.
George Anderson, grocer, Peebles, brought a suspension of a charge threatened to be given by Somerville, Murray, & Co., dealers in whisky, Leith, upon a bill for £100 drawn by Somerville, Murray, & Co. upon the complainer. The bill was dated 30th July 1896, and payable fourteen months after date. The complainer averred that in 1892, Murray, sole partner of the respondent's firm, had advised him to take up a licensed grocer's business in Linlithgow, and had offered to make him advances to start him in business; that he had failed to provide the funds, but had subsequently offered to raise money for him (complainer), and had for that purpose induced him to ‘write blank acceptances on two bill stamp forms; … that the complainer signed said acceptances, and handed them to Mr Murray solely in order that they might be used for the special purpose aforesaid’ (i.e., that of raising money for the complainer).
(Statement 11) ‘The blank acceptance aforesaid was not filled up and converted into a bill within a reasonable time of its date, nor was it so filled up in accordance with authority given by the complainer, either at the time of signing same or subsequently, and it is not a valid bill.’*
The respondents stated that on 30th July 1896, the date of the bill, Murray called on the complainer at Peebles, and that the complainer, with reference to previous promises to give a bill to recoup the respondents for their loss under a composition arrangement between the complainer and his creditors, including the respondent, in 1894, ‘then and there gave him (Murray) the bill, … with instructions to make it out for £100 at fourteen months' date.’
The complainer pleaded;—(1) The bill upon which diligence is threatened not having been filled up in accordance with any authority given by complainer; and, separatim, not having been completed within a reasonable time of the date of the complainer's signature thereto, is invalid, in terms of the 20th section of the Bills of Exchange Act, 1882, and the complainer is entitled to have diligence thereon stayed, as craved.
The respondents pleaded;—(3) The bill complained upon being valid and due, and having been properly filled up by the respondents according to the complainer's instructions of the date it bears, suspension should be refused.
The note was passed on juratory caution, and thereafter came to depend before Lord Kincairney, who allowed both parties a proof of their averments, and to the complainer a conjunct probation.
On 21st June 1898 the Lord Ordinary, after a proof, pronounced this interlocutor:—‘Finds that it has not been proved that the complainer signed the bill founded on, of the date it bears, or that he authorised the respondents to fill it up for the sum of £100; therefore suspends
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