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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Miller v Farquharson [1835] CA 13_838b (29 May 1835) URL: http://www.bailii.org/scot/cases/ScotCS/1835/013SS0838b.html Cite as: [1835] CA 13_838b |
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Page: 838↓
Subject_Writ.—
Three parties as co-obligants subscribed a document, which was not tested, purporting to bind them in payment of a sum of £80, and it was holograph of one of them—held, in an action against one of the parties, that, as the writ was not holograph of him, he was not bound by it.
Mrs Miller or Jones, and her husband, raised action against Robert Farquharson, manufacturer in Paisley, for payment of the contents of the following document:—
“Paisley, 4th November, 1813.
“We hereby acknowledge to have received from Margaret Miller £80 sterling, for which we pay her interest at the rate of 5 per cent per annum; and we oblige ourselves to repay the principal at any time, on getting six months' notice.
(Signed) “D. & J. THOMSON.
“ROBT. FAEQUHARSON.
“WILLIAM ANGUS.”
The writ was holograph of either D. or J. Thomson; the signature of Farquharson was acknowledged; but the writ was unstamped.
Farquharson, alleging that D. and J. Thomson (now deceased) were the proper debtors, and that the debt had been extinguished by them, resisted payment, and pleaded, that the document was of the nature of a promissory-note, and, being unstamped, was not actionable. The Court repelled this plea. 1
When the cause returned to the Lord Ordinary, the pursuers had the document stamped as a bond.
The defender pleaded, that it was not holograph of him, and being informal and improbative, was not binding upon him.
The pursuers answered—
1. That where several co-obligants signed together, and were necessarily witnesses to the signatures of each other, this nullity did not apply; and,
2. That a holograph writ was an exception, and as this writ was confessedly holograph of one of the Thomsons, who was a co-subscriber with the defender, it followed that the defender, by adhibiting his signature, adopted and ratified the holograph writ of Thomson, and was bound as effectually as Thomson himself. Thomson became, quoad hoc, his mandatary, and the holograph writ of the mandatary was binding on the mandant.
The Lord Ordinary, “in respect the written agreement libelled upon, is neither holograph of the defender, Robert Farquharson, nor framed in conformity with the provisions of the act 1681, chap, 5, assoilzied the said defender from the conclusions of the action, and decerns; and found him entitled to expenses from the date of the remit, and to no other expenses.” *
_________________ Footnote _________________
1 Dec. 4, 1834 (ante, 117).
* “ Note.—The pursuers' plea, that, if there are more than two obligates in a deed, they are to be held as witnesses to the subscription of each other, and the deed to that effect excepted from the operation of the act 1685, appears to the Lord Ordinary ill-founded, and pregnant with danger. Mr Erskine has said, that a deed subscribed by the members of a corporate body, or even by a number of private persons, has been once and again adjudged effectual on that ground; and he refers to two cases, that of Forrest in 1676, and the Sea-Box of Queensferry in 1732. It the first of these, the obligation was granted in re mercatoria, and was therefore a privileged writ. A very full report of the second case is given by R. Bell in his lectures on the testing clause, and, for the reasons which he there states, it is plainly no precedent on the general question. On the other hand, the doctrine was expressly disregarded by the Court in the case of Rankin in 1633, and in that of the Duke of Douglas in 1742, in both of which, though the writs were executed before the act 1681, they are equally good authorities on this point under the act 1579, which contains the same provision as to the witnessing of deeds. But if the exception is to be admitted at all, it must be confined to the case put by Mr Erskine, of a deed granted by a corporate body, or a numerous association. To extend it to every writing, where there are three or more obligants, would in a great men-sure defeat the object of the statute, and would be opposed to the uniform practice of more than a century.
“Another fatal defect is the want of the writer's name and designation.
“No authority is cited for holding that a deed, in the hand a ring of one subscriber, is to be taken as holograph, and privileged in a question with the other subscribers.
“There is no rei interventus in this case admitted by the defender, Feiqularson, or proved as in a question with him.”
The pursuers reclaimed.
The Court adhered, but altered on the question of expenses, and found none due to either party.
Solicitors: J. Richardson, W.S.— A. Nairne, S.S.C.—Agents.
