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procured from the defender and delivered to the pursuers the letter of guarantee No. 3 of process : That thereby the defender guaranteed payment to the pursuers of the prices of all goods which might be furnished by them from time to time “from this date,' to or on account of the defender's said son: Finds further that the said guarantee was subscribed by the defender not on the date it bears (1st May 1870), but on 25th February 1871: Finds for the reasons stated in the subjoined note that the guarantee binds the defender for the price of goods supplied by the pursuers to his son as far back as the date which it bears : Finds that the articles specified in the account annexed to the summons were furnished to the defender's son at the prices set over against them : Finds farther, that the payments made by the defender's son to the pursuers at dates subsequent to the time when the furnishings sued for in this action were supplied, were appropriated by the pursuers to other previous furnishings, and that the said appropriation was made with the knowledge and consent of the defender's son: Finds, as matter of law, that the pursuers were entitled to make the said appropriation : And, with these findings, appoints the case to be enrolled that an operative decree may be pronounced.
“John COMRIE THOMSON. “Note.—The view which I take of the facts of the case, as disclosed in the proof and correspondence, sufficiently appears from the foregoing interlocutor, except in so far as regards the question whether, when the defender signed the guarantee it was blank in date, or whether he must be held to have consented to the scope of his liability extending to a period prior to the actual date of signing. It seems unlikely that the defender, who is a man apparently acquainted with business, would have signed an obligatory document. It is more than unlikely—it is almost incredible—that he would have done so when the date was of the essence of the contract. I entertain little doubt that the statement given by the deceased Mr. Watson of the pursuers' firm, in the letter No. 45, is true. He says that at the request of the defender's son he filled up the blanks in the lithographic form of guarantee, “and with his consent ante-dated it so as to cover the whole of his indebtedness.' But even assuming that Mr. Watson's recollection is at fault, and that the letter was signed by the defender with the date unfilled up (which is the defender's own account of the matter), then the presumption seems to me to be that the defender authorized his son and the pursuers to audliibit such a date as would enable the former to get goods furnished to him by the latter. This view is not distinctly contradicted by the son's own testimony, and it is corroborated by the evidence of Mr Inverwick, solicitor, Arbroath, who states that when it was said in the hearing of the defender's son during the negotiations for a composition arrangement that his father was liable for the whole debts due to the pursuers, he did not contradict that statement.
“ But the defender further maintains (and this part of the case seems to me to be more delicate) that in making up an account between the parties to this action a new account must be commenced, as at the date when the letter of guarantee was granted, and that all payments made by the principal debtor since then ought to be placed at the credit of the goods received by him subsequent to that date; or at least that the defender cannot be deprived of the benefit of these payments. On the other hand, the pursuers contend that such payments were appropriated to other and previous furnishings. The letters and documents produced satisfy me that it was the intention of the debtor that the payments which he made should be appropriated by the pursuers to the payment of furnishings not embraced within the guarantee, and also that the pursuers did so appropriate them. Further, I am of opinion, as matter of law, that apart from a special understanding, and where the payments are the creditor may apply such payments in the manner most favourable to him. self, and that the natural course of dealing is to apply them in extinction of the debts which are earliest in date. Were any other view to be taken here, the result would be a limitation of the amount or value of the guarantee
indefinite, which the defender granted, and this is not to be assumed. It ought to have been expressly stipulated between the parties.
J. C. T.” The case was appealed to the Sheriff-Principal, who pronounced the following interlocutor :
“Edinburgh, 7th June 1876.–The Sheriff having heard parties’ procurators on the defender's appeal against the interlocutor of 10th April last, and considered the proof and whole process : Dismisses the appeal : Affirms the interlocutor appealed against; and decerns.
J. GUTHRIE SMITH. “Note.- The pursuers, merchants in Glasgow, received, on 27th February 1871, from the defender's son, who was then in business in Arbroath, a letter signed by the defender, guaranteeing payment of all goods with which his son might bě furnished (from this date). The date which the letter now bears is 1st May 1870, but it is admitted on both sides that it was not signed till a day or so before 27th February 1871. The question in the case is whether it was antedated with the consent of young Mr. Duncan, for whose behoof it was granted, and who was the party entrusted with it by the defender for the purpose of its being delivered to the pursuers. If we are to believe Mr. Watson, the member of the pursuers' firm by whom it was carried through, and who is now dead, but whose letter, written from St. Leonards-on-the-Sea in July 1873, may bé considered as having almost the same probative force as a formal deposition, there can be no doubt about it. He says that the occasion of the security being asked for was a bill falling due which Mr. Duncan was unable to meet. Å lithographed form of guarantee was handed to him with the banks filled up, and with his consent it was ante-dated so as to cover the whole of his indebtedness from May 1870. On the other hand, the defender and his son say that it was signed blank in the date, that it was so delivered to the pursuers, and there was no understanding that it should relate back so as to cover prior transactions.
“So standing the evidence, a nice enough question of fact arises ; but the Sheriff thinks that the following further facts are sufficient for the disposal of the case against the defender. On the 1st of November 1871 the pursuers wrote the defender, enclosing a statement of debt against his son amounting £113 odds, of which they requested payment under his letter of guarantee, 1st May 1870. Now, if it be the case that the defender had signed it blank in February preceding, in the belief that the letter was only to speak from the date of signature, he should at once have pointed out that a mistake had arisen ; but instead of making any reply, the letter was sent on to his son, who, in writing to the pursuer on the subject, expressed his regret that his father had been appealed to, but took no exception either to the claim itself or the alleged date of the guarantee. In fact, the present objection was not ken by the defender until the 13th March 1872, after his son had failed. In the interval there had been meetings in connection with a proposed arrangement of Mr. Duncan, junior's, affairs, in which enough passed to lead to the belief that he considered his father liable for the whole. In these circumstances, the Sheriff is very clearly of opinion that a strong presumption arises that there is nothing wrong with the date of the letter, and that it was inserted with the consent of young Mr. Duncan. Whether this was before or after signature is of no consequence, because the defender, by allowing the letter to leave his hands blank as to the date, undertook, by implication, to abide by the actings of his son in the matter when it came to be delivered to the pursuers, and therefore it must now receive effect in the terms in which it is expressed.
“The other point relates to the manner in which the account has been made up. The Sheriff is of opinion that the letter does not entitle the defender to have an entirely new account opened at 1st May 1870. It must be taken to have been a guarantee of the account as it stood in the pursuers' books in February 1871, when it was granted, with this qualification, that only goods furnished subsequent to a certain date were to fall under it, and that the account should be continued in the same form. It is also evident, from the correspondence, that it was well understood that in the course of dealing bills would be granted or renewed from time to time, as it might suit the convenience of parties. It is accordingly stipulated that the cautionary obligation is not to be affected by such bills. The Sheriff is of opinion that this understanding has been fairly carried out, and that the decision of the Sheriff-Substitute is right on both points.”
Act.-0. Prosser.— Alt.-C. Duncan.
Sheriffs DOVE Wilson and GUTHRIE SMITH.
JOHNSTON v. scott.—June 24 and July 14, 1876. Discharge of Ohligation-Mora-Aliment.—This was an action in which the pursuer sued the defender for the inlying expenses and aliment of an illegitimate child, born on 29th June 1843, at the rate of £4 per annum for ten years from that date, under deduction of £22 paid to account. It appeared that about the time of the child's birth an obligation to pay £2 of inlying expenses, and £2 per annum to the pursuer “to keep the child for the term of ten years," was written out by the defender in presence of witnesses, and delivered to the pursuer's father; and this obligation was followed by the periodical payment of the promised amount. Then there was silence for twenty-two years.
The Sheriff-Substitute (Dove Wilson) held that the claim for the aliment sued for had been discharged ; and assoilzied the defender from the conclusions of the action, with expenses. In the course of a note to the interlocutor, he said :
“ In the circumstances, the presumption is that the aliment paid was paid in full. The obligation does not specifically describe the payment either as in full or as to account ; but if it had not been intended to be in full, something would have occurred before the lapse of all this time to show that the transaction remained open. The pursuer had it in her power at the beginning, either to sue for the full legal rate, or to accept less. She chose to accept less for reasons that doubtless seemed to her, as well as those who advised her, sufficient, and it will not do to go back on the matter. It is true that according to law the claim for aliment is one which does not prescribe, but it is one which may be paid or discharged like any other debt, and the proof of such payment or discharge does not require to be in writing. The proof may be by facts and circumstances, and there can be no better evidence of a discharge having been given, in consideration of certain payments, than is afforded by their periodical acceptance without objection, coupled with silence for a very long time after the last of them became due.”
The Sheriff (Guthrie Smith), on appeal affirmed the judgment of the SheriffSubstitute, and appended to his interlocutor the following note:
“The pursuer has been ill-advised in re-opening this old and painful incident in her early life. She accepted a written undertaking to pay at a certain rate for a definite period. The undertaking was duly implemented; and now, after the lapse of twenty years, she brings an action in which she proposes to treat the sums already received as mere payments to account. It is manifest that that is not the footing on which they were given and taken at the time. Quiescence for twenty years, with full knowledge of the facts, is acquiescence, if anything is ; and the account must now be held to be closed."
Act.--J. Muill.----Alt.-C. Duncan.
JOURNAL OF JURISPRUDENCE.
ODILON BARROT was born at Planchamp, in the Lozère, on 19th July 1791. His family was one of the oldest among the local bourgeoisie. Apparently, it must have been predestined to the study of the law, for we find traces of a certain Barrotus Notarius who flourished about 1337. Odilon's father was a member of the Bar of Toulouse; and so much credit did he enjoy among his neighbours, that in the terrible year IV. of the Revolution he was sent as Deputy to the National Convention. One of the earliest memories of young Odilon, therefore, was the sound of Bonaparte's cannon quelling the insurrection of St. Roch-a catastrophe entirely caused by the illegal action of the Convention in re-electing itself. Soon after this
, grandfather Barrot was murdered by a band of ruffians who had established themselves in the Cévennes, and are known in history as the “Camp of Jalès." The Convention-men at Paris shared in the general distress which political excitement and confusion at home and political hostility and distrust abroad combined to produce. Odilon tells how, during their stay in Paris, his mother used to buy bread, meat, and candles with the paper currency, the bons and assignats issued by the Government to its members. The boy was sent to the school of St. Cyr, which rejoiced in the pedantic name of Prytaneum. The teaching was really supplementary to that of the military school of Fontainebleau. The sons of Oudinot, Désaix, and Kléber were there, and frequently the "Little Corporal" himself came down and reviewed the lads, so many of whom were to become the victims of his insane ambition. From St. Cyr he went to the Napoleon Lyceum, and after the usual study and graduation in law he was received as an advocate, and took the oath before the Imperial Court of Paris in 1811. It is pleasant to VOL. XX. NO. CCXXXVII. - SEPTEMBER 1876.
recognize in this great man that adventurous and jocular spirit which seems to inspire the Bar, of whatever country or century, when it goes on circuit to practise “ in anima vili.” Barrot tells a good, though slightly French, story of his having saved a man charged with theft by housebreaking. He had an interview with his client at the Conciergerie: he told him there was only one possibility of escape-he must wash his face and have his beard shaved. The advice was taken, Barrut advancing the money for the barber, and the jury returned a verdict of not guilty. But circuit triumphs, of which he had many, produce inore glory than profit; and as Barrot was the eldest of a family of six, and his father had not much more than the 10,000 francs allowed to members of the Corps Législatif, the young advocate naturally asked himself the question, whether he was entitled to live for a few years at the expense of the family? He felt his position so much that he was on the point of accepting a post of SubPrefect somewhere in the provinces, when luckily his father met an old friend. This was Deputy Mailhe, of regicidal memory, who in 1792 delivered a great speech in the Convention in support of Valaze's motion that Louis XVI. should be tried, “that he was called Inviolable only by a figure of rhetoric." Mailhe, therefore, for the sake of old friendship, took by the hand young, Barrot, delivered him out of the slough of despond, and installed him in his chambers as his "jackal,” assistant, permanent junior, what you please, with the prospect of succeeding his patron. This opportunity in one sense came soon; for when the Empire fell in 1814, the Chancellor Dambray refused to continue Mailhe's name on the list of advocates practising before the Royal Council: he was obliged to name a successor, and he named Barrot. The old man was still entitled to practise at the Cour de Cassation, and substantially his position as regards his pupil was not changed. At this period there was at the French Bar a group of notable young men. There was Berryer, the prince of orators, a modest and sympathetic youth, strongly expressing his liberal convictions against the despotism of the last days of the Empire, and even then remarkable for the strength and sincerity of his dogmatic religion, which subsequently inspired one or two of his most singular public actions. There was the brilliant but self-conscious Mauguin, on whom Nature had poured her gifts so richly, that, like Adonis, he became infatuated with his own beauty; that is to say, he, a lawyer, regarded himself as infallible in law, which does not admit of infallibility. And so, by inevitable moral causation, his splendour was shortlived, both at Bar and in Senate. Very different in appearance and character was Merilhou, who, without genius, was yet highly esteemed and believed in. He, too, ends in darkness of an un. pleasant kind. Next comes the indefatigable scholar Dupin, whom Cambacérès had already made Secretary of the Commission for the Classification of Laws, and who in the cases of Ney, the Lavalette