Scottish Court of Session Decisions

Section 20 of the Bills of Exchange Act 1882 (45 and 46 Vict. c. 61) provides (sub-sec. 1) that “where a bill is wanting in any material particular, the person in possession of it has a prima facie authority to fill up the omission in any way he thinks fit.” Sub-sec. (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.”

Page: 285↓

An action was raised in the Sheriff Court of Glasgow by Mr William Maclean, glass merchant, against Alexander M'Ewen & Son, builders, Glasgow, concluding for payment of £50 in respect of a bill accepted by the defenders. The bill was dated 18th August 1897, drawn by Drummond & Company, glaziers, Glasgow, and accepted by the defenders, and was payable two months after date. The bill was blank endorsed by Drummond & Company to the pursuer for value received. The bill was not paid on its due date, and application for payment was made to the drawers and acceptors On January 4th 1898 the pursuers received a letter from the defenders' law-agent, in which he brought to his notice the fact that the word “pay” was omitted in the bill. The pursuer filled up the omission, and as the defenders repudiated liability raised the present action.

He pleaded—“(3) Pursuer having been in lawful possession of said bill, was entitled to fill up the omission of any material particular, and having done so the bill is good and sufficient and warrants decree as craved.”

The defenders averred that they had received no value from Drummond &Company. They denied that they knew of the omission of the word “pay” when they signed the document, and averred further that the omission had been rectified about 15th February 1898, or four months after the bill would have matured, and that shortly prior to that date the drawers had become notour bankrupt.

They pleaded—“(2) The document libelled not being a bill of exchange, and the defenders having received no value in respect thereof, they are entitled to absolvitor with expenses. (3) The defenders having been parties to the document libelled prior to the addition of the material particular condescended on, and the said material particular not having been filled up within a reasonable time, the said document is not enforceable against the defenders.”

The Sheriff-Substitute ( Spens) on 5th April pronounced an interlocutor whereby he repelled “the defence founded on the alteration of the bill subsequent to its coming into the holder's hands.”

The defenders having admitted that the pursuer was holder of the bill for value, the Sheriff-Substitute thereafter gave decree for the sum concluded for.

The defenders appealed to the Court of Session.

Argued for appellant—This was a question of circumstances, and four months after the bill had matured certainly could not be considered “a reasonable time” in which to supply the deficiency. There was the further circumstance of the drawer's notour bankruptcy shortly prior to the date when the omission was supplied— Temple v. Pullen, 1853, W.H. & Exch. Rep. 389.

Argued for respondent—In the case quoted by the appellants the period which elapsed was six years. Here it was only four months. As the appellants admitted that they had signed the bill without noticing the omission, they were in no way prejudiced by its being supplied. The notour bankruptcy of the drawers was not admitted, but in any case it did not affect the respondent's position.