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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kechans v. Barr [1893] ScotLR 31_79 (14 November 1893) URL: http://www.bailii.org/scot/cases/ScotCS/1893/31SLR0079.html Cite as: [1893] ScotLR 31_79, [1893] SLR 31_79 |
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Page: 79↓
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In a case where the suspender of a charge on a bill produced a genuine signature utterly unlike that on the bill, and where the holder of the bill could not allege that the signature thereon was genuine, and had to admit that it differed from that on two other valid bills held by him— held that the note should be passed without caution.
Thomas Barr, wine and spirit merchant, Glasgow, was charged at the instance of William Kechans, merchant, Haywood, Lanark, to pay £1000, being the amount of a bill upon which his name appeared as an acceptor. Of this charge he brought a suspension, on the ground that the alleged signature was not genuine and was unauthorised.
Upon 28th June 1893 the Lord Ordinary on the Bills ( Low) ordered answers, and appointed “the charger to produce the bill charged on, and the suspender to produce genuine subscriptions in real transactions bearing his signature of date prior to the charge.”
In his answers the charger did not allege that the signature on the bills was genuine, but only that he “had no room to doubt the genuineness of the signature, … and that if the complainer did not in fact adhibit his signature, … he authorised this signature to be adhibited.” He also explained that he had held two other bills purporting to be signed by the complainer which had been acknowledged as valid, but he admitted that the signatures on them differed widely from that on the bill now produced and from the signature of the complainer now exhibited.
The complainer produced a sheet of paper with his signature upon it subsequent to the date of the charge, but with the explanation that he was a very old man, who had not been in the habit of signing documents, and that consequently he had no earlier signatures to exhibit, that in the case of the other bills he had authorised the signature, which was written by his wife, but that here he had given no authority.
The Lord Ordinary on 18th July 1893 passed the note without caution.
The charger reclaimed, and argued—There was an invariable practice in such cases to require caution— Ross v. Millar, December 2, 1831, 10 Sh. 95 (Lord Cringletie's opinion); Renwick, November 24, 1891, 19 R. 163. If the complainer admitted that he had authorised the signing of the other bills, the onus was on him of proving he had not authorised the signature here.
The complainer argued—The Lord Ordinary was right. In the special circumstances caution should not be required. The signature in question was admittedly quite different from that now exhibited, and genuine— Wilson v. Hart, February 25, 1826, 4 Sh. 504; Paterson v. Mitchell, November 25, 1826, 5 Sh. 43; Bruce v. Borthwich, March 3, 1827, 5 Sh. 517; Ross v. Millar, supra.
At advising—
The complainer alleges that the document in question is a forgery, and upon the Lord Ordinary requiring him to produce several subscriptions in real transactions bearing his signature of date prior to the charge, he makes an explanation which accounts for the absence of documents of that character. He says that he is a very old man, that he does not write well, and that he is not in the habit of signing documents of the character required by the Lord Ordinary. He, however, produces in default a sheet of paper on which he has written his signature, and it is manifestly unlike the signature upon the bill on which the charge proceeded.
Now, the attitude of the respondent turns out to be more complicated than it appeared to be on record. The respondent is in possession of two bills dated prior to the one in question, each of which he held or holds as a valid instrument, and on both of them there is something which purports to be the signature of the complainer, and the respondent is constrained to say that the two signatures do not resemble the signature upon the bill upon which the charge proceeded.
That being so, and looking to the tone of the record, I cannot say that I read the case upon the ordinary footing of a man asserting that the signature upon a bill in his possession is a genuine signature, and that, coupled with the explanations made at the bar, seems to warrant the Lord Ordinary in passing the note without caution.
Page: 80↓
The Court adhered.
Counsel for the Complainer— Galloway Agents— W. & F. C. Maclvor, S.S.C.
Counsel for the Respondent and Reclaimer— Burnet. Agents— Patrick & James, S.S.C.
