Scottish Court of Session Decisions

Subject_1 WRIT.
Subject_2 SECT. I.

Subscription of the Party.

Brown
v.
Johnstoun

Date: 26 February 1662
Case No. No. 4.

A bill of exchange being subscribed by a mark, it was found not probative, but the writer and witnesses were allowed to be examined.

Click here to view a pdf copy of this documet : PDF Copy

Brown having obtained decreet against Archibald Johnstoun of Clacherie for £200 Sterling; he raises reduction and review upon this reason, that the ground of the said decreet was a bill of exchange drawn by Johnstoun to be paid by Mukgown in Blackainor-fair in England, ita est, the alleged bill is null, not designing the writer, nor having any witnesses, neither hath it the subscription of Johnstoun, nor the initial letters of his name, but only a mark most easily initiable, which is written about with an unknown hand “Archibald Johnston his mark.” It being reasoned amongst the Lords, whether this could be accounted a writ probative; and it being alleged an astruction thereof, that the Johnstoun being a merchant and a drover, was accustomed ordinarly so to subscribe; and to give bills for far greater sums than this;

The Lords thought it would be sufficient amongst merchants, though it wanted witnesses, but being unwilling via ordinaria to allow of such a writ, or subscription, for which we have neither custom nor decision; yet in respect of the decreet, and of the the alleged custom so to subscribe, they before answer, ordained the oaths, ex officio, to be taken of the, writer of the bill, if he could be condescended on by either party, and of the witnesses who saw Johnstoun write this mark or receive the money, for which the bill was granted. See No. 6. infra.

Stair, v. 1. p. 105.