Scottish Court of Session Decisions

Subject_1 BLANK WRIT.
Subject_2 SECT. IV.

Decisions on the Act 25th, Parliament 1696.

Executors of Mr Robert Walkingshaw
v.
Campbell

Date: 8 Jan 1730
Case No. No 23.

A bill drawn payable ‘to the bearer,’ was considered to be null as a blank writ.

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John Campbell of Mamore drew a bill upon Ronald Campbell, writer to the signet, payable to the bearer, which was accepted.

The holder of the bill was Captain Patrick Ronalds, whose creditors, the Executors of Walkingshaw, arrested the sum in the hands of the acceptor. In a furthcoming, it was objected, That the document was null upon the act 1696, relative to blank writs.

After a variety of procedure, the Court pronounced this interlocutor:

“Having considered the petition with answers, with the memorial, together with the act of Parliament anent blank bonds and writs, Find the bill in question not obligatory.”

A second petition is introduced in this manner: ‘This question has depended before your Lordships since 1725. It has received six different interlocutors; and, by no less than four of these interlocutors, the bill was found good; by two of which, in presence, the defence on the act of Parliament was repelled.’ This second petition was refused without answers.—The memorial alluded to in the interlocutor was written by Lord Kames. It was argued, That bills may be considered as blank writs in two different shapes; 1st, When the name of the drawer is blank; and 2dly, When there are both a drawer and acceptor subscribing, but the creditor's name to whom payable is blank. The first only, it was contended, was under the eye of the legislature in the act 1696. The main design of the statute was to obviate a fraud, at that time much in use, committed by people labentes or lapsi bonis, of taking blank obligations from their debtors, which they had the opportunity of conveying privately away, in defraud of their lawful creditors. This object of the act corresponded ill with the nature of bills of exchange, the purpose of which is, that they shall pass freely from hand to hand like bags of money. It must have been this consideration which occasioned the exception of blank indorsations contained in the act: And the intention of the act is as much accomplished as it can be with regard to bills, by rendering them null, if blank in the drawer's name. For this indeed there was reason. It became an additional check against Forgery; and, without the subscription of a drawer, the contract supposed in a bill is imperfect, and the possessor is deprived of his recourse.

As to bills subscribed both by drawer and acceptor, but blank in the name of the creditor, there can be no reason for comprehending these more than blank indorsations under the act. Both are in precisely the same situation; and, in the spirit of the act, a bill blank in the creditor's name, ought to be exempted as well as one blank in the indorsation. The law is correctory, and ought rather to be restricted than extended in interpretation. It is besides worthy of notice, that a bill ‘payable to the bearer,’ is in fact not truly a blank writ in any respect. The drawer is in fact the creditor. The bearer is ‘his order.’

All this argument was disregarded.

Fol. Dic. v. 1. p. 104. Session Papers in Advocates' Library.