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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Patrick v. Whyte [1911] ScotLR 423 (06 February 1911) URL: http://www.bailii.org/scot/cases/ScotCS/1911/49SLR0423.html Cite as: [1911] ScotLR 423, [1911] SLR 423 |
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Page: 423↓
[Sheriff Court at Paisley.
Circumstances in which held that the endorser of a bill of exchange had not waived her right to found upon the non-fulfilment of the statutory requirement of presentment of the bill and notice of dishonour, and in respect thereof was free; although an agent on her behalf had sought delay, proposed to compromise, and made a payment to account.
On 24th September 1909 Joseph Patrick, chartered accountant, 203 West George Street, Glasgow, judicial factor on the trust estate of the deceased Dugald Alexander Mactavish, writer in Johnstone, pursuer, brought an action in the Sheriff Court at Paisley against (1) Matthew Whyte, residing at Overton, Johnstone; (2) Rev. Quintin Whyte, Inch, Stranraer, and others, trustees and executors of the late Mrs Robina Dick or Michael, who resided in High Street, Johnstone; and (3) Ninian Glen, chartered accountant, 107 St Vincent Street, Glasgow, trustee on the sequestrated estates of Alexander Whyte, grocer, Johnstone, defenders, in which the pursuer claimed payment of the sum of
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£150, being the balance of a loan a evidenced by a bill at six months, dated 14th May 1904, for £400, and arrears of interest thereon. Defences were lodged by Mrs Michael's trustees.
The pursuer pleaded, inter alia—“(3) The late Mrs Michael having recognised her liability on the bill by making a payment to account thereof in November 1908, and thereby impliedly waiving presentment and notice of dishonour, the defences should be repelled.”
The defenders pleaded, inter alia—(1) In respect of the failure of the holder of said bill to observe the provisions of the Bills of Exchange Act 1882, relative to the presentment thereof for payment and notice of dishonour for non-payment, the said Mrs Robina Michael was thereby discharged.”
The facts were thus stated in the interlocutor of the Court ( v. also opinions infra), viz.—“(1) Finds in fact that on 4th November 1897 the bill for £400 at three months' date was drawn by Alexander Whyte, the constituent of the defender Mr Ninian Glen, upon and accepted by the defender Matthew Whyte, and endorsed blank by the late Mrs Michael, the mother of Alexander and Matthew Whyte, and author of the compearing defenders; (2) that the said bill was for the accommodation of Matthew Whyte, and the drawer and indorser lent their names as accommodation parties thereto; (3) that the said bill was discounted by the Union Bank of Scotland, Johnstone; (4) that when the said bill came to maturity on 7th February 1898 it was not retired by the parties, but, at the request of Matthew Whyte, the late Mr Mactavish, upon whose estate the pursuer is judicial factor, advanced the money to take up the bill; (5) that with the consent of all three parties to the bill the advance by Mr Mactavish was treated as a loan to Matthew Whyte, for which Mr Mactavish held the said bill as security, and interest thereon at four per cent. was thereafter paid half-yearly by Matthew Whyte up to and including Whitsunday 1904: Finds in fact and law that the said bill became prescribed in February 1904: Finds further in fact (6) that the said loan not having been repaid, Mr Mactavish prepared a second bill, dated 14th May 1904, again for £400, at six months' date, which was signed by Alexander Whyte as drawer, by Matthew Whyte as acceptor, and by the late Mrs Michael as indorser, sometime in July 1904; (7) that the £400 for which that bill was drawn represented the sum already lent by Mr Mactavish to Matthew Whyte; (8) that this bill was not discounted but kept by Mr Mactavish as security for the loan, upon which half-yearly interest at the rate of four per cent. was continued to be paid by Matthew Whyte; (9) that at Martinmas 1904 a client of Mr Mactavish, a Mrs Maclaine, gave value for the bill, and it was subsequently held by Mr Mactavish as agent on her behalf, until his death in 1907; (10) that subsequent to the death of Mr Mactavish the pursuer gave value for the said bill to the said Mrs Maclaine, and finds in fact and law that the pursuer is now holder of the said bill, and finds in law that the said bill being indorsed in blank is payable to bearer: Finds further in fact (11) that the bill was not presented for payment at maturity, that it was not dishonoured, and no notice of dishonour was sent to Mrs Michael, the indorser; (12) that on 12th May 1908 Messrs Holmes & Co. wrote to Mrs Michael, as agents for the “holder of the joint acceptance for £400 by you and Mr Alexander Whyte and Mr Matthew Whyte, to intimate that payment of the balance remaining due thereunder is now required” (13) that Mr Stirling, Mrs Michael's agent, having been consulted about said letter, advised her that she was liable to pay as demanded, and with her authority paid Messrs Holmes & Co. £150 to account on 2nd November 1908; (14) that on 3rd November Holmes & Co. wrote to Mr Stirling acknowledging receipt of the £150 towards payment of the sums due “under acceptance …. on which Mrs Michael is liable as endorser,” and enclosing a copy of the bill; (15) that on 4th November Mr Stirling advised Mrs Michael that he did not think she would require to pay the balance; (16) that Mrs Michael died on 10th March 1909; (17) that Mr Stirling made no reply to Holmes & Co.'s letter of 3rd November 1908, nor to their subsequent letters, dated 5th December 1908 and 9th January 1909, and never, until he wrote the letter of 30th July 1909, stated to them either that Mrs Michael claimed repetition of the £150, or that she repudiated liability for any further payment; (18) that there is no evidence to show what instructions, if any, Mrs Michael gave to Mr Stirling on 4th November 1908 or subsequently, and none to show that she knew he had received the said letters of 5th December 1908 and 9th January 1909.”
On 19th July 1910 the Sheriff-Substitute ( Lyell), after a proof led, found in law that Mrs Michael had by her actings waived any objections she might have had that the statutory requirements of presentment for payment, dishonour, and notice of dishonour, had not been fulfilled, repelled the pleas for the defenders, and decerned against them in terms of the conclusions of the initial writ.
The defenders appealed to the Sheriff ( Kennedy), who on 24th February 1911 recalled the interlocutor of the Sheriff-Substitute, found in law that Mrs Michael was discharged of all liability as endorser of the bill, repelled the third plea-in-law for the pursuer, sustained the first plea-in-law for the defenders, and assoilzied them.
The pursuer appealed to the Second Division of the Court of Session.
Argued for the appellant—Mrs Michael had waived her objections to the lack of the statutory requirements and admitted her liability on the bill by asking for time to pay, suggesting compromises, making a payment to account, and giving a promise to pay the balance. (1) In order to displace the presumption that Mrs Michael had
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waived her objections, the respondents would have to show that the acts or writings founded on, which established the presumption of waiver, had been caused by misrepresentation or ignorance of some essential fact. But the respondents could show neither of these things. (2) In any event it would not be enough for the respondents to show mere ignorance on the part of Mrs Michael, apart from misrepresentation, because Mrs Michael might have waived all inquiry into the facts—a possibility which the respondents would have to disprove also—Bell's Commentaries (7th ed.), vol. i, p. 446, note 1; Balfour v. Smith & Logan, February 9, 1877, 4 R. 454, 14 S.L.R. 316; Kelly v. Solari, November 18, 1841, 9 M. and W. 54, per Lord Abinger, 57; Great Western Railway Company v. M'Carthy, February 14, 1887, 12 A.C. 218, per Lord Watson, 234. (3) The onus of disproving waiver implied by the actings of a party was especially heavy in such a case as the present where the party was dead, because it necessitated an inquiry into the state of mind of a deceased person. (4) The essential fact of which it was said Mrs Michael was ignorant was a fact which it was admitted she had once known. Therefore the onus was especially heavy. (5) It would not be enough for the respondents to show ignorance on the part of Mrs Michael of the general law. They would need to show ignorance of an essential fact or of some particular right depending on the construction of some particular document—Bell's Prin., sec. 534; Wilson & M'Lellan v. Sinclair, December 7, 1830, 4 W. and S. 398; Schofield v. Londesborough, [1896] AC 514, per Lord Watson, 533; Cooper v. Phibbs, (1867) L.R., 2 H.L. 149, per Lord Westbury, 170; Beauchamp v. Winn, (1873) L.R., 6 H.L. 223. The respondents' proposition that nothing done after an act could affect its consequences was fallacious, because the state of a person's mind could be inferred from what happened after an act, although, of course, the quality of the act could not be altered. In this case there was no proof that there had been any misrepresentation, or that Mrs Michael was under any error with regard to either the facts or the law. The appellant also referred to the following authorities to show what constitutes waiver—Byles on Bills (17th ed.), pp. 283, 284; Bell's Commentaries, supra; Allhausen & Sons v. Mitchell & Company, February 23, 1870, 8 Macph. 600, per Lord Justice-Clerk, 603; Shepherd v. Reddie, March 1, 1870, 8 Macph. 619, 7 S.L.R. 339; Lundie v. Robertson, 1806, 7 East 231; Taylor v. Jones, 1809, 2 Campbell 105; Campbell v. Webster, 1845, 15 L.J. (C.P.) 4; Woods v. Dean, 1862, 32 L.J. (Q.B.) 1; Cordery v. Colville, 1863, 32 L.J. (C.P.) 210, per Byles, J., 211; Killby v. Rochussen, 1865, Scott's Reports, 18 C.B. (N.S.) 357; Stewart v. Kennedy, March 10, 1890, 17 R. (H.L.) 25, 27 S.L.R. 469. Argued for the respondents—A payment to account did in the general case raise a presumption of waiver, but in such a case as the present, where the inducing cause of the payment was the misrepresentation that Mrs Michael was an acceptor, the presumption was displaced. Mrs Michael could not be held to have waived a right of whose existence she was unconscious, and nothing which happened after the payment could affect its legal nature. The question in the present case was very similar to a question of homologation—Erskine's Institutes, iii. 3, 48—but there had been no homologation here. There was a presumption against the revival of an obligation— Darnley v. London, Chatham, and Dover Railway, (1867) L.R., 2 H.L. 43, per Lord Chancellor, 57. The case fell to be decided on a question of essential error of fact, not of law— Miller v. Anderson, March 4, 1831, 9 S. 542; Johnston v. Johnston, March 11, 1857, 19 D. 706; Douglas v. Douglas' Trustees, June 30, 1859, 21 D. 1066, per Lord Justice-Clerk, 1084, and Lord Cowan, 1085; Mercer v. Anstruther's Trustees, March 6, 1871, 9 Macph. 618. Mrs Michael's forgetfulness was the same as ignorance—Kerr on Fraud and Mistake (4th ed.), p. 475; Lucas v. Worswick, 1833, 1 Moody and Robinson, 293; Kelly v. Solari, supra; Hood v. Mackinnon, [1907] 1 Ch. 476, per Eve, J., 482; Brownlie v. Millar, June 10, 1880, 7 R. (H.L.) 66, per Lord Blackburn, 80, 17 S.L.R. 805; Bell v. Gardiner, 1842, 4 Manning and Grainger, 11, per Tindal, C.J., 24.
I do not think there is any serious difficulty or dispute as to the general law applicable to such a case as this. At all events we are fortified in that respect not only by the Sheriff's learned disquisition, ranging from Ulpian to modern times, but also by a copious citation of authorities at the bar. The difficulty arises rather upon
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The demand for payment of the balance (then £300) due under the bill was made by a letter of 12th May 1908 from Messrs Holmes & Company, the pursuer's agents, to Mrs Michael. The letter is unfortunately expressed, for it alludes to “the joint acceptance for £400 by you and Mr Alexander Whyte and Mr Matthew Whyte,” and the words “joint acceptance” recur in their letter of 4th August. I see no reason at all for supposing that these words were used by Holmes & Company with any dishonest or sinister design to conceal the fact that Mrs Michael was not an acceptor but an endorser of the bill. I think it is a great pity (to use no stronger term) that Mr Stirling should have thought fit to take up that attitude and maintain it in the witness-box; and the defender's counsel at our Bar (very properly, as I thought) disclaimed any injurious suggestion of the kind. Still the words “joint acceptance” were inaccurate, and would, I think, be apt to mislead anyone ignorant of the exact position of Mrs Michael in regard to the bill. Mr Stirling says he was misled, and assumed at once, and without thought of further inquiry, the accuracy of Messrs Holmes' assertion (as he considered it) that Mrs Michael was liable as an acceptor. It does seem strange that he should not have taken the trouble to see the bill for himself or to ask Holmes & Company for further details about it. His office and their office are in the town of Johnstone. He was in correspondence with them, and on perfectly good terms with them; and quite a number of meetings between Mr Stirling and members of the firm are spoken to in the proof during the period from May to the end of October 1908. But I do not say that Mr Stirling neglected his duty in taking the matter for granted, as he says he did, without further ado. Mr Stirling and Mrs Faulds—Mrs Michael's daughter—tell us that Mrs Michael, on receiving Holmes & Company's letters, was “much put about,” and said she would not pay because she thought the bill “had been discharged and out of the way” but that, on Mr Stirling's pressure, and his advice that she was undoubtedly liable to pay, Mrs Michael consented to the realisation of some heritable property, and to the payment of £150 to account on 2nd November 1908. Down to this point the defenders' case wears a very plausible aspect, for I think one is bound, upon the evidence, to believe that the payment of £150—which of itself afforded prima facie evidence of waiver—was authorised by Mrs Michael only because her agent advised her that she was bound to pay. The Sheriff-Substitute takes the view that neither she nor her agent was in fact misled at all by the words “joint acceptance.” He thinks she “must have known quite well what that meant.” This is matter of opinion and conjecture, but I cannot hold it proved as matter of evidence. Accordingly I think that at this important stage the onus shifts back to the pursuer to establish his plea of waiver by something occurring after the payment, and apart from the intrinsic weight of that fact. There is no doubt that what happened later gives him ground for a serious argument.
On 3rd November Messrs Holmes acknowledged receipt of the £150, and sent Mr Stirling, in answer to his somewhat tardy
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One must carefully consider the effect of this correspondence and of the action (or rather want of action) of Mrs Michael's accredited agent. I think, as already said, that the defenders must on the evidence be taken to have proved that the payment of £150 was authorised by Mrs Michael, owing to Mr Stirling's advice that she was legally bound to pay. But the question at the moment is not as to recovery of the £150—that was treated in the argument on both sides as past praying for—but as to her further liability for the unpaid balance. I cannot doubt that if Mr Stirling had been himself the endorser, or if we had only to consider his state of knowledge, the defenders' case would fail. It is clear that on and after 4th November Mr Stirling was under no error at all as to his client's position. He knew she was an endorser. He presumed (and rightly) that the statutory requisites had not been complied with, and Mrs Michael was ex hypothesi discharged. Yet he maintained an unbroken silence in spite of the payment to account, and of Messrs Holmes' repeated demands for settlement of principal and interest. I confess that Mr Stirling's attempted explanations of his attitude leave me in bewilderment. They are really not explanations at all. As given both in cross-examination and in various replies to the Sheriff-Substitute, they seem to me to be inadequate, inconsistent, and I must add far from candid. And if this were a case where a pursuer was dealing with the defenders' accredited agent and relying on the faith of his actions, or it may be of his silence,
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Mrs Michael is unfortunately dead, and the evidence as to her state of knowledge and of mind is extremely scanty. I think we must take it that Mr Stirling advised her on 4th November that he thought she would not require to pay any more. What is there to show that after that date, when the embargo of his previous advice was removed, she decided to pay the balance of the bill, knowing she might in law object to do so? There is Matthew Whyte's evidence, but it seems to be in parts exaggerated and lacking in precision, and while I see no reason to characterise it as untrue, it would not, I think, be enough by itself to prove waiver on his mother's part. There is really nothing else. The fact of Mr Stirling's silence loses weight, in this aspect of the case, when one considers that there is no evidence that Mrs Michael was aware of Messrs Holmes' demands for payment after 4th November. His silence thereafter is not therefore necessarily her silence. Nor is it proved what instructions (if any) Mrs Michael gave to Mr Stirling on that day. I do not think there is room for any inference that she instructed him that, whether legally bound or not, she was desirous to pay the balance of the bill. There is no evidence of this; it would have been contrary to what we must suppose was her attitude of mind previous to 4th November; and no further steps were in fact taken prior to her death to wards payment by way of realisation of property or otherwise. It is true, on the other hand, that there seems to be equally little room, when one considers the fact of Mr Stirling's silence, for an inference that Mrs Michael instructed him to intimate to Messrs Holmes her refusal to make any further payment. We are left to suppose that she gave no instructions at all. But the presumption is, I apprehend, in dubio adverse to waiver; and having done my best to scrutinise the evidence, and to follow the shifting burden of the proof, my conclusion is that waiver has not been proved, and that the pursuer's case must fail. I think we should recall the interlocutors of the Sheriff and of the Sheriff-Substitute, repeat the first eleven findings contained in the latter interlocutor, and make additional findings in fact and in law upon the lines and to the effect I have indicated.
The bill of 14th May 1904 took the place of an earlier bill to which the same persons had been parties, but which at that date had prescribed. The first bill was granted to secure a loan made to Matthew Whyte by the late Mr Mactavish, on whose estate the pursuer is judicial factor. Mrs Michael endorsed it in order to provide the holder with her obligation as cautioner for her son in the event of his not being able to meet the bill. While the bill is dated 14th May, it was not granted till some four months later and within two months of its due date. It was not presented for payment to Matthew Whyte, but he continued to pay interest upon it at the rate of 4 per cent. for some years, and he also paid a sum of £100 towards its extinction.
On 12th May 1908 Messrs Holmes & Co., writers in Glasgow, who acted on behalf of the then holder of the bill, wrote to Mrs Michael intimating that payment of the balance of £300 remaining due thereunder was required. At that date Mrs Michael's liability had been discharged by the holder's failure to present the bill in due course to the acceptor, but after some correspondence Mr Stirling, writer, Johnstone, who acted on Mrs Michael's behalf, on 2nd November 1908 made a payment of £150 to Holmes & Co. in part payment of the bill. This payment is founded on as a waiver of presentment to the acceptor, and as reconstituting the obligation which Mrs Michael had originally incurred as an endorser. While a great many authorities were cited on both sides of the bar, and are referred to by the learned Sheriff, the difficulties which the case admittedly presents do not arise from any uncertainty as to the law. A part payment by an endorser of a bill after his liability has been discharged by failure to present it to the acceptor and to give notice of dishonour if payment has not been made when presented is presumed to operate as a waiver of due presentment and notice, but if such payment is made under a mistake in fact it cannot be founded upon as reconstituting the original obligation. This is the defence which the executors of Mrs Michael now make to the claim. The onus of establishing it in the face of a payment made by or on behalf of the endorser, which must be presumed to have been made in the knowledge of the facts connected with the bill, lies upon the person alleging the mistake. The difficult question in this case is whether that onus has been discharged.
In considering this question regard must be had to the position of the parties and
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These being the circumstances, I think it is plain that Mrs Michael would not have undertaken liability for the sum of £300, which represented a considerable part of her means, unless she believed that she was legally liable. That she might waive inquiry as to whether she was liable or not in order to prevent the whole sum being demanded from her is of course possible, although I cannot regard it as probable in the circumstances in which she was placed.
The case, however, does not stop there. The letter from Holmes & Company of 12th May was most unfortunately expressed. In demanding payment from Mrs Michael they described the bill as “the joint acceptance for £400 by you and Mr Alexander Whyte and Mr Matthew Whyte.” These words are free from ambiguity, and represent that Mrs Michael had signed the bill as a joint acceptor along with her two sons. This misdescription by writers of high standing in Glasgow who actually had the bill in their possession at the time was, I think, most misleading. The bill was again referred to on the 4th of August as “a joint acceptance,” and it was not until after the payment had been made that Mr Stirling, who acted for Mrs Michael, ascertained that her position on the bill was not that of an acceptor at all but that of an endorser. Messrs Holmes & Company's letter also proceeded upon the footing that there was no question of the liability of Mrs Michael to the holder of the bill; and Mr Mackillop, by whom the correspondence was conducted, says that it did not occur to his mind that any objection was possible or likely with regard to the form of Mrs Michael's obligation. If that were so, then it must have been on the footing that there had been due presentment and notice of dishonour given to the endorser, a matter upon which apparently Mr Mackillop had no information at the time.
The evidence of Mr Stirling, who conducted the negotiations on Mrs Michael's behalf, is to the effect that he accepted the statement of Holmes & Company that Mrs Michael was a joint acceptor; that under the error so induced he advised her that she had no defence to the claim and obtained her authority to settle it. His statement is corroborated by Mrs Faulds, a daughter of the deceased Mrs Michael, who was in the confidence of her mother, and who says she was cognisant of all the transactions that took place at the time. She says—“She [Mrs Michael] would not allow Mr Stirling at first to arrange for payment under the £400 bill. As time went on, Mr Stirling took up the position that it must be paid, and it was only on the pressure Mr Stirling brought to bear on my mother that she consented to pay it. She ultimately consented to Mr Stirling raising money by bond for paying this £150, the £200, and some obligations which we got a note of.” I see no reason to doubt this evidence, whatever may be said of some of the other statements which Mr Stirling made and to which I shall afterwards have occasion to refer. Mr Stirling had no conceivable motive, but quite the contrary, to advise his client to meet an obligation which had long since been discharged and for which that client (although on other grounds) considered herself not liable. That he should have urged her to pay £150 out of regard to the holder of the bill is to my mind in the circumstances unthinkable, and there is not a fragment of evidence pointing in that direction. Had the matter therefore stopped there I think there would have been only one conclusion on the evidence, namely, that Mrs Michael authorised her agent to make the payment on which the plea of waiver is founded under the advice of her agent, who gave that advice because he erroneously believed, in consequence of Messrs Holmes & Company's representations, that she was liable on the bill as an acceptor. Had he ascertained that her true position was that of an endorser I entertain no doubt that he would have first made
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In Mr Stirling's letter of 2nd November containing the remittance of £150, he asked Messrs Holmes & Co. to annex to their letter of acknowledgment a copy of the bill, “as I have not seen it at any time.” This letter was answered next day, and a correct copy of the bill was annexed. It was then brought home to Mr Stirling's mind that his client was merely an endorser, and on the same day that he received the letter he had an interview with Mrs Michael and Mrs Faulds, and learned from them that so far as they knew no notice of dishonour had ever been received. It is matter of great surprise and of some reflection on Mr Stirling that he did not at once communicate with Messrs Holmes and point out that he had sent the payment of £150 on the footing that Mrs Michael was a joint acceptor of the bill, and asked them how her liability as an endorser still continued. He gives various more or less inconsistent explanations of his silence. None of them, I think, satisfactorily explains it. I think it was Mr Stirling's plain duty to have intimated that he had advised his client to make the payment on an erroneous footing, and to have asked the money to be returned. The pursuer desires us to infer from his silence that he was not in fact misled; and if the obligation contained in the bill had been Mr Stirling's own, I think the inference would have been that as Mr Stirling presumably knew in what capacity he had signed the bill and took no objection to the footing on which payment had been demanded of him, he could not be heard to say that he believed himself to be an acceptor at the time when he made the payment. But it is a different question whether Mrs Michael's estate has to suffer because of his failure in his duty towards her. There is no suggestion that she was ever made aware of the difference between an acceptor's and an endorser's liability, or that the soundness of her agent's advice to her depended on her being an acceptor. Her ignorance of the general law would not have excused her, but if the advice upon which she acted proceeded on an error in fact on the part of her adviser, it is just the same as if she had herself made the payment under the same mistake. The true explanations of Mr Stirling's silence I believe to be that he felt that he might be charged with carelessness in not ascertaining what Mrs Michael's true liability on the bill was before advising her to pay it and remitting £150 to account of it. I do not think that he could have been seriously blamed, looking to the precise way in which the bill was described in Messrs Holmes' letter of 12th May, but it was obvious that trouble might be incurred in recovering back the payment of £150, and that reflections might be made on Mr Stirling for having acted precipitately without full knowledge of the facts. Whether this be the true explanation or not, I do not think it can be inferred that Mrs Michael, who acted on the advice of her agent, and who, I have no doubt, had completely forgotten all about the bill except that she had signed it, was not misled, and if so, the payment of £150 was authorised by her under an error and therefore was not a waiver of her rights as an endorser. Mr Stirling's conduct after he had discovered the truth cannot be treated as a new waiver by his client. I admit the cogency of the inference to be drawn from his conduct as bearing on the question whether Mr Stirling and his client were in fact misled and paid the £150 under error, but I do not think it is sufficient to displace the positive evidence of Mr Stirling and Mrs Faulds, or to convict Mr Stirling of perjury as regards the crucial parts of his testimony.
The pursuer founded strongly on the evidence of Matthew Whyte to the effect that his mother constantly recognised her liability for Mrs Maclean's bill. That, however, does not in the least conflict with the view that she did so because that was the advice she had received from Mr Stirling, proceeding, as I hold, on essential error as to the facts. The cross-examination of Matthew Whyte also tends to show that he is far from being a reliable witness.
I have therefore come to the same conclusion as the learned Sheriff, and although the matter is not properly before us, I should like to state that as at present advised I agree with him that the claim for repayment of the £150 is probably barred by the delay in putting it forward. There can be little doubt that Messrs Holmes & Co. allowed time for the further payment of the bill in respect of the part payment which they had received, and they have been prejudiced in their remedies against Matthew Whyte by the belief which had been induced that Mrs Michael accepted liability on the bill. To that extent Mr Stirling's conduct may have resulted in a loss to his client's estate, but it does not at all follow that that estate is to be subjected to a further claim for £150, of which it had at that time been discharged.
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The Court pronounced this interlocutor—
“Dismiss the appeal: Recal the interlocutors of the Sheriff and the Sheriff-Substitute, dated respectively 24th January 1911 and 19th July 1910: [ After the findings supra] Find in law that Mrs Michael was discharged of liability as endorser of the said bill in respect of non-fulfilment of the said statutory requisites, and that it is not proved that she waived her right to found upon said non-fulfilment: Therefore repel the pursuer's third plea-in-law and sustain the defenders' first plea-in-law: Assoilzie the defenders from the conclusions of the initial writ, and decern.”
Counsel for the Pursuer and Appellant— Constable, K.C.— D. P. Fleming. Agents— N. B. Constable & Co., W.S.
Counsel for the Defenders and Respondents— Munro, K.C.— W. T. Watson. Agents— Macpherson & Mackay, S.S.C.