Scottish Court of Session Decisions

At advising—

Lord President—This is a question entirely of fact on the evidence. The complainer has suspended a charge on a bill on the ground that his acceptance is forged. It is now conceded that the signature is forged—forged by a person who is now away, a relative of the complainer's. But the respondent maintains that the complainer is still chargeable because he has adopted or accredited the bill. Now, a good deal has been said as to the onus probandi on the person founding on the signature in such circumstances, in which I entirely concur. The onus is a heavy one, and rightly so; for the effect of sustaining such a plea is to bind a person just as if he had subscribed, while in point of fact he did not subscribe, and to bring him under a literarum obligatio by parole evidence. In such circumstances the proof must be very strong, and above all the party proving must himself be entirely free from suspicion. Now, here the respondent is surrounded with suspicion throughout. He had no acquaintance with Powrie till the occasion of discounting a £70 bill, but he was well acquainted with Baldie, the drawer of the bill, the present forger, and it is clear that Louis either knew or strongly suspected that Baldie had forged acceptances before this one. In these circumstances it was the plain interest of Louis, if he wished to act honestly, to make sure, in dealing with bills by Baldie, that the acceptances were genuine. He did not do so. But he says that he got three different acknowledgments from Powrie that the acceptances were his. His statements are loose enough at the best, even if uncontradicted. There is, however, a conflict of evidence, and it is very remarkable that a business man like Louis should take the risk of this bill being all right on the faith of three casual conversations when he had it in his power to put it all right. One remarkable circumstance is said to have occurred at the last meeting. Then Powrie desired to have cash for a £70 bill which he held before it fell due. This was a bill which had been accepted by Louis as the price of furniture. After the interview £25 was paid by a cheque, but Powrie was dissatisfied and asked for further payment. But Louis refused to give cash for the bill, stating as his reason that the other bill for £275 was maturing, and that when it fell due there would be an accounting between him and Powrie. Now, this is rational enough if true. That was Louis’ original answer. But when Powrie writes afterwards for further payment, it is remarkable that Louis does not make the same answer. On 16th June Powrie writes:—“Dear Sir,—I am surprised you have not sent me a cheque as promised; be good enough to let me have one this week, or I shall send the bill to Glasgow to be discounted.—Yours, &c.” Louis’ answer is as follows:—“Dear Sir,—Yours of 16th to hand, but as you are aware the bill is drawn at 3 months, consequently I cannot see that there is any hurry for me sending a cheque at present; however I may do shortly. I have already lost money by the furniture, so that I may as well take the advantage of the time allowed. As to discounting the bill, that I will leave to your own discretion.—Yours truly.” A lame enough answer that. He retreats from his promise. His former answer was far more satisfactory and conclusive. That leads me to doubt whether the former answer was ever made at all, and this throws doubt upon the whole interview.

Again, it was thought necessary by Louis to have a separate receipt from Baldie for the money he gave as discount. There is no satisfactory explanation of why this was asked for or given. Further, I do not say that this receipt is a forgery, but it is so unlike signatures which are admittedly Baldie's as to make it the respondent's duty to clear up the matter.

On the whole matter, and without having seen the witnesses, I can find no reliable evidence to affirm Louis’ evidence. I am for adhering.

Lord Deas and Lord Mure concurred.

Lord Shand—I have no difficulty in concurring. I am clear that the Lord Ordinary is right. There is one feature which distinguishes this case from all others which we have had. When the usual notice that the bill was falling due was sent to the alleged acceptor, he at once intimated that the signature was not his. In former cases there was failure to give timeous denial, and injury had so resulted to the bank. But here notice was sent on 26th July from Glasgow that the bill fell due on the 31st. Powrie called at once—on the 27th—and when the bill was sent to Dundee for collection the same thing occurred again. The case is thus unique. The only writing we have records the acceptor's instant repudiation, and the evidence of Scott, the bank agent, shows that Powrie was decided enough from the first that the signature was not his—that he did not take any time to think What then is left? The respondent's case is founded entirely on what happened during the first month of the bill's currency. There were three meetings, and there never was anything more than casual references to the bill. I am clearly of opinion that when the object is to make a party responsible for what he did not sign, if there is no writing to show it, the evidence must be very distinct, and I am not sure that it would be effectual, however distinct, unless actings followed which showed prejudice. Mere evidence of agreement would not bind one under a lease without proof of actings. Verbal communings will bind only if acted on. In Mackenzie's case the House of Lords, especially Lord Blackburn, say that the essence of the case on this head is that actings should follow on conversations to make it effectual. In this his Lordship follows Baron Parke in Freeman v. Cook ( 2 Ex. 654). I make these observations merely to guard myself from being understood to say that words alone would have been enough, however clear. Here I think the evidence is far from clear. I entirely agree with your Lordship's view of the evidence. There is an entire failure to prove adoption.