JAMES MUIR v JOHN and THOMAS BRAIDWOOD (Court of Session)

The advocator Muir brought an action before the Sheriff-court of Lanarkshire, against the respondents John and Thomas Braidwood, (as representatives of John Braidwood, deceased,) for payment of a bill for L.200; and setting forth, ‘that where the pursuer, by bill, dated 22d day of February 1826, drawn by him upon, and accepted by John Braidwood, mason in Uddingston, now deceased,’ &c., and concluding, that the defenders, as representing the said John Braidwood, should be decerned and ordained to make payment to the pursuer of the said sum of L.200.

I. It is not necessary to the validity of a bill that has been duly accepted, that it should be subscribed by the drawer. On the contrary, the acceptor's obligation is complete by his acceptance, and the person who appears to have been intended as the payee, or to stand in the payee's right, is entitled to demand payment, even without the drawer's name being filled up.

III. Even assuming that the insertion of the name of the drawer had been necessary, and that the name inserted in the bill had been intended to represent his signature, it became his signature to every legal effect by his adopting and homologating it, and the acceptor has no right to refuse payment of the bill, on the ground that the name of the drawer is not inserted in his own handwriting.

I. Where, in an action for payment of a bill, the summons libels the bill as a bill subscribed by the apparent drawer himself, and not per procuration of him, or where such is the import of the summons, and it appears, or is admitted, that the drawer's name was not subscribed by himself, the action cannot be maintained. In raising action on a bill where the drawer's name has not been subscribed by himself, but by another with his authority, it is necessary that the libel should expressly bear that the bill was so subscribed.

II. Where an action is raised for payment of a bill in the above form, and the bill is challenged as false and forged, and the pursuer in answer denies that the bill is false and forged, but states that the subscription of the drawer was not adhibited by him, but by another person, the bill is not a probative or valid document, and action on it cannot be maintained; Mrs Margaret Jackson and Husband v. J. Williamson and W. Henderson, 9 Dec. 1825.