THE BANK OF SCOTLAND v DURIE'S TRUSTEES and Miss AITKEN (Court of Session)

Henry Aitken of Lochhead and William Flockhart of Annafreck, corroborated by Miss Marian Aitken, Henry Flockhart of Annafreck, and Robert Durie younger of Craigluscar.’

This letter was signed by Mrs Aitken and the other defenders, but it was not signed by Flockhart. Mudie junior operated on the cash-credit till his bankruptcy in December 1832, at which time the whole sum of L.1000 was drawn out, and there was besides due a sum of L.46 : 4 : 3 of interest. Miss Aitken having paid up L.524, the Bank instituted the present action for payment of the balance.

Miss Aitken averred that she signed the letter on the understanding, that before it was to be acted upon it should receive the signature of Henry Flockhart. The other defenders averred, that after the signatures of Robert Mudie junior and Miss Aitken were adhibited to this letter, five crosses were made upon it, apparently to point out where the five trustees of Mr Durie were to sign, and one cross below Miss Aitken's signature, to point out where Flockhart was to sign, and that they also signed upon the faith of Flockhart's signing.

The Lord Ordinary pronounced an interlocutor, in which he ‘repels the defences, decerns in terms of the libel, but finds no expenses due.’

Lord Gillies .—The case is not free from difficulty; but after the statement by Durie's trustees, (No. 5,) ‘that Mr Mudie was succeeded by his only son, Robert Mudie, then a minor, who applied to the Bank, and also to the cautioners, for permission to operate upon and continue the credit established in his father's name,’ I think it is evident that Mudie must have obtained the signatures. But if he failed to apply for the signature of Flockhart, who is to be liable for that omission? In my opinion certainly not the Bank.