Scottish Court of Session Decisions

This was a suspension at the instance of Alexander Urquhart, farmer, Invermoriston, Inverness-shire, of a charge which he had received at the instance of the Bank of Scotland for payment of a bill for £34, bearing to have been endorsed by him to the Bank.

The suspender averred that the signature of his name upon the bill was a forgery.

The bill in question is dated 29th May 1871, and bears to be drawn by Hugh Gair on, and accepted by, William Macmillan, flesher, Inverness, and Duncan Fraser, farmer, Westerleys, and to be endorsed by Gair and the suspender. Gair is a brother of the suspender's wife, and was then a farmer at Hilton, near Inverness. The bill fell due on 1st August 1871, and as it was not paid on that day, the agent of the Bank of Scotland at Inverness, on 2d August, sent by post to the suspender, as well to the other obligants in the bill, a notice in the following terms:—

“ Inverness, 2 d August 1871.

Sir, I beg to intimate that the bill after specified, on which you are an obligant, has been protested for non-payment. You are therefore requested to retire it at this office.

William M'Millan and Duncan Fraser's acceptance to Hugh A. Gair, endorsed by you p. £34, dated 29th May 1871, @ 2 m/d, due here 1st inst.—I am, &c., Don. Duff, Agent.”

The notice was received in course of post by the suspender, who returned no answer till 23d August, when the Bank agent received a letter from him, dated 21st August, stating that he had never signed the bill. Meanwhile, on 17th August, Gair had absconded. He was afterwards apprehended and committed to prison on the charge of forging bills.

The Bank, besides maintaining the genuineness of the suspender's signature, pleaded—“(2) The complainer having homologated and adopted the signature in question as his genuine signature, is now barred from objecting that it is forged. (3) The complainer having, as condescended on, by his failure timeously to intimate to the respondents the alleged forgery, deprived them of their recourse against the said Hugh A. Gair, is barred from disputing his liability for said bill.”

The note was passed on caution, and a proof taken.

From the evidence it appeared that Urquhart, who had been originally a ploughman, and was now a small farmer, though a shrewd and intelligent man, had received little or no education. He could write with difficulty, and his wife seems to have conducted his correspondence. For some time past Gair had been in the habit of forging Urquhart's name on bills, for the purpose of raising money. In general, these bills were retired by Gair before they came due, and Urquhart heard nothing about them. But on several occasions, shortly before the bill became due, Gair wrote to Mrs Urquhart, telling her that her husband would receive a notice from the Bank in reference to the bill, but that he need not mind, or something to

Page: 509↓

that effect, for he (Gair) would retire it. On these occasions Urquhart duly received from the Bank a notice that a bill was past due, on which he was an obligant. On one occasion, viz., 8th June 1870, Urquhart received from the Bank agents the following notice:—

“69 Church Street, Inverness, 8 th June 1870.

Sir, Your past due bill to Mr Hugh A. Gair, Hilton, has been handed to us for recovery by the Bank of Scotland. Our instructions are to take extreme measures at once if payment is delayed any longer. We have therefore to intimate that, unless we receive payment by Twelve o'clock next Tuesday, the bill will be at once protested, and thereafter placed in the hands of a sheriff-officer.

The amount of the bill is £37, 19s. 3d. stg., exclusive of expenses of recovery.—Your Obed. Serv.,

Innes & Macdonald.”

It was proved that on receipt of this letter Urquhart had spoken to Gair about it, and had received no satisfactory explanation, but that nevertheless he had lent Gair money to take up the bill. The bill which was the subject of the present suspension was also proved to be forged by Gair.

The Lord Ordinary ( Jerviswoode) pronounced the following interlocutor. (The clause in italic was added by the Inner House.)

“ Edinburgh, 6 th February 1872.—The Lord Ordinary having heard counsel on the proof adduced, and whole cause, and having made avizandum and considered the same, Finds that the bill, to which the present note of suspension has relation, and which bill bears to be dated the 29th May 1871, and to be drawn by Hugh A. Gair upon, and accepted by William Macmillan and Duncan Fraser, and which bill was endorsed by the said Hugh A. Gair, and is stated to have been also endorsed by the complainer to the respondents, was not, in point of fact, so indorsed by the complainer; and finds that the indorsation on the said bill, bearing to be that of the complainer, is not the signature of the complainer; but further finds, that the said complainer did, on or about the 3d August 1871, receive the intimation to the effect that the said bill on which he was stated to be an obligant, had been protested for non-payment, and that he was requested to retire the same, as set forth in the 2d article of the statement of facts for the respondents, and that the complainer, though well aware that the said Hugh A. Gair, his brother-in-law, was in the habit of forging his name on bills, and that he himself had not signed the bill in question, as indorser or otherwise, did not, on receipt of such intimation, and not until on or about the 23d of said month of August, inform the respondents or their agent that the signature on the said bill, bearing to be that of the complainer, was not his signature: Finds, as matter of law, that no sufficient or relevant cause for such delay on the part of the complainer, in making intimation to the respondents as aforesaid, has been established by the proof led on his behalf, or otherwise appears: Therefore, and with reference to the preceding findings, sustains the 3d plea in law for the respondents, and, in respect thereof, repels the reasons of suspension: Finds the letters and charge orderly proceeded, and decerns: Finds the complainer liable in expenses, of which allows an account to be lodged, and remits the same to the auditor to tax and to report.

Note.—This is a case of considerable interest, and is of importance to the parties, and more especially to the complainer, who, if the present interlocutor be well founded, must bear a serious loss in consequence of refraining from repudiating at once an obligation which was never truly granted by him, and from which he derived no personal benefit; but, as in the question with the present respondents, and with which the Lord Ordinary has here to deal, there seems to be no valid ground for suspension of the charge.”

The suspender reclaimed.

When the case was called, Lord Deas, as a shareholder of the Bank of Scotland, proponed a declinature, which the Court repelled; A.S., Feb. 1, 1820.

Watson and Mackintosh, for the suspender, argued that that Urquhart, being an illiterate man, did not understand that Gair had forged his name till Gair confessed it in a letter written the night before he absconded. He had led Urquhart to believe that in some way or other he could use his name for the purpose of raising money for short periods. The whole evidence and correspondence shows that the announcement that Gair had forged his name came upon Urquhart by surprise. In any view, even if it were held that Urquhart knew of the forgery, mere silence for three weeks, even after a demand for payment, will not make a party liable for a document which he has not signed: Macarthur, 3d March 1825, 3. S. 607, 427 (N. E.); Warden, 13th February 1863, 1 Macph. 402; Boyd, 12th Dec. 1854, 17 D. 159. In all the cases in which the plea of adoption had been sustained there had been communings between the party and the bank, or in some other way the signature had been accredited.

Solicitor-General and Asher, for the respondents, were not called upon.

At advising—