Samuel Stirling, and Others, accepting and acting Trustees of John Mackenzie, deceased v. Robert Forrester, Treasurer to the Governor and Company of the Bank of Scotland [1821] UKHL 3_Bligh_575

UKHL
Samuel Stirling, and Others, accepting and acting Trustees of John Mackenzie, deceased v. Robert Forrester, Treasurer to the Governor and Company of the Bank of Scotland
[1821] UKHL 3_Bligh_575
REPORTS OF CASES HEARD IN THE HOUSE OF LORDS UPON APPEALS AND WRITS OF ERROR, And decided during the Session 1821, 2 Geo . IV.SCOTLAND.COURT OF SESSION.

No. 23

Samuel Stirling , and Others, accepting and acting Trustees of John Mackenzie, deceased Appellants v. Robert Forrester , Treasurer to the Governor and Company of the Bank of Scotland Respondent1821 .received or receivable from any of the parties upon the bills, or their estates; and that, on payment of such fourth part of such balance, the Bank were responsible to the estate of the fourth surety for all future dividends upon the dishonoured bills.The Bank of Scotland having discounted bills to the amount of 8,000 l . which were dishonoured, the acceptors becoming bankrupts, agree with the drawers to retain the dishonoured bills, and receive the dividends which might become payable from the bankrupt estates; and, as additional security, to take four promissory notes, indorsed by four sureties, for 2,000 l . each, to guarantee the unsatisfied bills, or any balance upon them which might remain unpaid, to the extent of 2,000 l . each. This agreement having been carried into effect; when the notes were nearly due, upon the application of the original debtors for delay of payment, the Bank of Scotland gave up one of the promissory notes, and accepted a new one from the surety who had indorsed it; renewed notes were also given by two other of the sureties, and with the fourth surety, a treaty was carried on, respecting a renewal, pending which he died. The dishonoured bills had also been delivered over by the Bank to the original debtors, upon the treaty for the renewal of the notes.Held, (reversing pro tanto the judgment of the Court below,) that the fourth surety and his estate, by the legal effect of the transaction, was discharged as to three-fourths, and liable only as to one fourth, of the balance due upon the dishonoured bills, after giving credit for all monies

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A company conducting business at Dunfermline, under the firm of James and George Spence, employed Mr. Paterson, banker in Edinburgh, as their money-broker and banker, lodging in his hands the bills which by the usage of their trade they obtained from their customers at long dates. In return, Paterson and his agents in London, Robertson, and Stein, and Tod and Company, accepted bills drawn by Messrs. Spence, which were discounted with Mr. Hunt, the agent for the Bank of Scotland at Dunfermline. Mr. Hunt, and his cautioners in the bond granted, in consideration of his official trust, were liable to the Bank for these discounted bills, and all consequent loss.In the autumn of 1810, Mr. Paterson and his agents failed, leaving unretired with the Bank of Scotland acceptances of bills drawn by Messrs. Spence to the extent of 8,200 l . Being liable for these acceptances, Messrs. Spence proposed that the Bank should retain the acceptances by Mr. Paterson and his agents, and draw the dividends which might be due from the bankrupt estates; and for additional security, that four gentlemen should guarantee the unsatisfied bills, or any balance upon them that might remain unpaid, to the extent of 2,000 l . each. This proposal was accepted by the directors of the Bank; and accordingly Mr. Mackenzie, the Appellants constituent, indorsed to

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The form of the obligation was a promissory note by James and George Spence to Mr. Mackenzie, dated 1st December 1810, and payable eighteen months after date, indorsed by Mr. Mackenzie to Mr. Hunt, and by Mr. Hunt to the Respondent, as treasurer of the Bank.When the promissory notes thus obtained became nearly due, Messrs Spence again applied to the directors of the Bank for further delay of payment, requesting at the same time that their note indorsed by Mr. John Spence might be given up.In answer to this application, by a letter from the accountant of the Bank, dated the 27th of April 1812, after stating the balance due on the discounted bills, and the manner in which the payment of that balance was collaterally secured, Messrs. Spence are informed that the directors agree to the liquidation of the balance by a bill or note from Messrs. Spence, jointly and severally with Messrs. Beatson, Haig, Mackenzie, and Hunt, payable three months after date. By another letter of the same date, Messrs. Spence are informed that “the directors have ordered their new promissory

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Some time after this transaction, but at what time does not appear, the bills were again restored to the Bank; and in the accounts exhibited by the Bank, which were made up to the 5th of October 1813, credit is given for the dividends received upon them.The directors had taken a renewed promissory note, indorsed by Mr. John Spence, surgeon, Royal Navy, dated 27th April 1812, at three months, for 1997 l . 4 s . 2 d . in lieu of the original note for 2,000 l .; and according to the proposal made by Messrs. Spence, they expected to receive other three notes, each indorsed by one of the three gentlemen whose original notes were to fall due on the 4th June 1812.On the 8th of May 1812, Mr. Mackenzie wrote to Mr. G. Spence a letter, in which, after noticing that the bill for 2,000 l . which he had accepted was about to fall due, and that a dividend would be paid out of Paterson's estate, he says, “in that case I trust the Bank will not object to renew the bill.”

On the 11th May 1812, Mr. George Spence

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Mr. Mackenzie being unwell when he received this letter, his daughter, Miss Mackenzie, wrote a letter, dated the 13th May 1812, to his agent Mr. Pearson, desiring him to inform Mr. Spence that her father would accept the 2,000 l . bill when sent.In answer to this letter, Mr. Pearson, on the 14th May 1812, wrote to Miss Mackenzie, to inform her that he should mention to Mr. Spence what she stated as to the 2,000 l . bill.On the 15th May 1812, Messrs. Spence wrote to Mr. Mackenzie as follows:
“I now enclose for your indorsation our note to you for 2,000 l ., at three months, from 3d June 1812, which please indorse above Mr. Charles Hunt's name. As this bill is to lie with the Bank of Scotland, and to be applied for our account and behoof solely, we hereby oblige ourselves to free and relieve you of the same, when due, and also oblige ourselves to give you any satisfactory line necessary. We omitted to mention above, that this bill is to retire ours for the same amount, indorsed by you, due the 1st-4th June 1812, and that upon lodging this bill with the Bank of Scotland they give up the other one, which we will return you.”
Mr. Mackenzie died on the 21st of May without having indorsed the new promissory note.

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On the 2d of June 1812, Messrs. Spence wrote a letter to the Bank, enclosing their new promissory notes, informing them that Mr. Mackenzie had died before he could fulfil his promise of indorsement, and suggesting, that as Mr. Mackenzie had intended and engaged to indorse the note, it would be the same security to the Bank to let the old note lie over for three months. But the directors would not agree to accept of the new note without the indorsement; and Mr. Mackenzie's original note when it fell due was protested “at the instance of Robert Forrester, Esq. treasurer to, and for behoof of, the Bank of Scotland, the holder, against James and George Spence, manufacturers in Dunfermline, the grantors, John Mackenzie, Esq. indorser, and Charles Hunt, late agent for the Bank of Scotland at Dunfermline, also indorser.”This protest was intimated to Mr. Mackenzie's representatives, by an official letter from the Bank; and was also duly recorded in the books of session.On the 24th May 1813 the directors demanded from Mr. Mackenzie's representatives payment of the sum contained in the promissory note which he had indorsed, which being refused, an action was brought by the Respondent in the name and on the behalf of the Bank of Scotland.The case having come before Lord Alloway, as Ordinary, his Lordship, after hearing counsel, granted a diligence for recovering writings, and appointed the Appellants to state in a condescendence the grounds of their defence. Such a condescendence having been lodged, and followed by answers, and the documents upon which both parties founded having

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up to Messrs. Spence the bills which they held of Robertson and Stein, which formed part of the 8,000 l ., yet this was done merely for the purpose of drawing the dividend from Robertson and Stein; and, this being done, these bills were again restored to the Bank; and credit is given in the accounts exhibited by the Bank for the dividends so drawn: Finds, that when the four bills for 2,000 l . each became due, Messrs. Spence had applied to their friends and to the Bank for a renewal of the same for three months; and that it is instructed by Miss Mackenzie's letter, written by her father's order, that he had also agreed to renew his obligation for three months ; and Mr. Haig, Mr. Beatson, and Mr. John Spence, having also consented to a renewal of their obligation, new bills upon their part were discounted; but Mr. Mackenzie having died after the bill had been sent to him to be signed, his bill was not renewed, but the former bill was protested, and duly intimated to the representatives: Finds, that in these circumstances the renewal of the other three bills, and Mr. Mackenzie having previously assented to a renewal, cannot entitle his representatives to be relieved of the payment of his bill: Finds, that the intimation to his representatives of the dishonour of the bill upon which Mr. Mackenzie stood bound, put in their power to have brought the matter to a close, and to have insisted that the Bank should immediately close the account, and receive their proportion of the loss corresponding to Mr. Mackenzie's obligation of 2,000 l ., but so as not to exceed that sum: Finds, that nothing has been stated upon the part of the Defenders to show that the Bank had attempted to give any of the obligants the least preference over the rest; and as it is not disputed that the balance due to the Bank still greatly exceeds the sum of 2,000 l . contained in the promissory note indorsed by Mr. Mackenzie, after giving credit for all the sums which they have been enabled to recover from the other obligants, decerns against the Defenders as Mr. Mackenzie's representatives, for payment of the sum contained in the said promissory-note, with interest thereon since the same became due.”
“The Lord Ordinary having considered the condescendence for the Defenders, answers thereto for the Pursuer, productions and whole process, finds, that this action proceeds on a bill granted to the late Mr. Mackenzie by Messrs. Spence, and discounted by Mr. Hunt, as the agent for the Bank of Scotland at Dunfermline: Finds, that this bill was indorsed by Mr. Mackenzie, together with other three bills, by Mr. Haig, by Mr. Beatson, and Mr. John Spence, for 2,000 l . each, in order to operate to the Bank of Scotland as a security for a sum exceeding 8,000 l ., in which Messrs. Spence then stood indebted to the Bank, arising from the returned bills of David Paterson, Robertson and Stein, and Tod and Company, which Messrs. Spence had negotiated with the Bank: Finds, that when the bills indorsed by Mr. Mackenzie and the three other gentlemen became due, although Mr. Mackenzie was not a joint obligant for the 8,000 l ., and could only be liable upon his separate obligation for the 2,000 l ., yet, as it appears from Mr. Sandy's letter that the Bank were well acquainted with the nature of the transaction, and that these four obligants had merely interposed their security for Messrs. Spence to the amount of 2,000 l . each, in relief of 8,000 l . due by the Spences to the Bank, so the Bank could only have proceeded against them by giving them a proportionable and equitable relief of the debts which they had been able to reeover from the original obligants: Finds, that, although it is alleged that the Bank had given

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Upon this judgment, the Respondent gave in a representation, in which he prayed the Lord Ordinary to alter the interlocutor, in so far as it connected Mr. Mackenzie's note with the other three promissory-notes, and either at once to decern generally against the Appellants; whereupon the Lord Ordinary superseded advising this representation, until the representation, and additional representation upon the part of Mr. Mackenzie's representatives, came to be advised. And on advising the same, with the representation for the Appellants, he refused the representation, and adhered to the interlocutor complained of.Two other representations on the part of the Appellants were followed by similar decisions.Both parties reclaimed by petition to the First Division of the Court; and the petition of the Appellants was disposed of by this interlocutor:
“The Lords having heard this petition, they refuse the desire of it, and adhere to the interlocutor reclaimed against;”

and, of the same date, their Lordships

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“The Lords having resumed consideration of this petition, they refuse it as unnecessary.”
The parties again offered petitions against these interlocutors, when the following judgment was pronounced on both:
“The Lords having heard this petition, they refuse the desire of it, and adhere to the interlocutor reclaimed against.”
The cause having afterwards come to be heard before the Lord Ordinary, on the point of expenses, the question was remitted to the auditor, with the instruction, that, in taxing the amount, he shall strike out the expence of the representations and petition for the Bank; and, finally, judgment was pronounced, approving the auditor's report, and assessing the expences to the sum of 80 l . 14 l . 11 d . for which, and the dues of extracts, decerns.Against the interlocutors of 24th November 1815, 17th May, 11th June, 4th July, 28th November, and 10th December 1816, and of 22d January 1817, the Appellants entered their appeal. The Respondent also, on his part, took the necessary measures for keeping open the interlocutors, in so far as they tended in any degree to limit the foundation of his argument. A cross-appeal was entered for that purpose.For the Appellants, the Attorney-General , and Mr. C. Warren .Arg. 23 & 28 Feb.The original proposal, as appears by the letters of Messrs. Spence to the Bank, was to procure security

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In any cross-action against J. Spence for contribution, the other sureties could not have had the same remedy; by accepting a new security from J. Spence, they discharged him from the old security. The letter written by Mackenzie's daughter, in answer to the proposal by the Bank, could not bind him, especially as he was not informed of the circumstances. If one of several co-sureties pays more than his share of the debt secured, he has a right of contribution against the others, Deering v. Lord Winchelsea § . By discharging the obligation

Footnote

* See the letters in the appendix to the Appellant's printed case, pp. 13 & 14.† See the appendix to the Appellant's printed case, the last item of the account.‡ Letters, 23 & 27 April 1812. Appx. to A. P. C.§ 2 Bos. & Pul. 270.

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If the creditor has no right to alter the situation of the surety as to the whole debt, the principle applies equally to the case of a part. The acceptances of Robertson and Stein might have been one of the inducements to the contract. By indorsing the new note, John Spence was discharged from the original debt, and consequently from the obligation to contribute. At law it has been doubted whether an assumpsit is raised against a surety; and, at the most, the aliquot part only can be recovered. Cowel v. Edwards * . But in equity the surety may recover, from a solvent co-surety, the full proportion, according to events.Independently of all other objections, the delay in prosecuting the remedies against the principal debtors, was sufficient to discharge the sureties.For the Respondents, Mr. Wetherell , and Mr. W. Adam .The note given by Mr. Mackenzie was distinct and unconnected with the other notes; and by granting indulgence to the other obligants, the Bank did not weaken their right of recourse against Mr. Mackenzie, or his representatives.The proposal, stated in the correspondence, that each obligant should be bound for the whole sum,

Footnote

* 2 Bos. & Pul. 268. See the Dict. of Buller, J. in Toussaint v. Martinnant , 2 T. R. 105; and of Lord Kenyon, in Exall v. Partridge , 8 T. R. 310.

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The bills due by Robertson and Stein were put into the hands of Messrs. Spence, merely in order to enable them to draw, for the Bank's behoof, the dividends due upon them from the bankrupt estate of Robertson and Stein. Messrs. Spence accordingly drew these dividends, which were paid over to the Bank, and were placed to the credit of Messrs. Spence's debt; and, upon this object being effected, the bills were returned, and have ever since remained in the possession of the Bank. The account exhibited by the Bank shows that credit was given for these dividends. The Lord Ordinary was satisfied, that the Respondent's statement on this point was correct, and found accordingly.The note for 2,000 l . which was indorsed by Mr. John Spence, was not a surrender, but a renewal.The transaction with regard to John Spence's note was not essentially different from what was done with regard to the other notes, and the whole complaint of the Appellants resolves merely into this:—that the Bank, instead of doing diligence upon these notes, when they fell due, took renewals of them, and, by thus giving indulgence, injured or weakened Mr. Mackenzie's right of relief.The cautioner is not free, because the creditor allows the principal debtor reasonable indulgence, and abstains from following out immediate diligence

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By the renewal of these notes, the Bank neither discharged any of the joint obligants, nor surrendered any other collateral security which could have been available to the Appellants, nor weakened their right of relief.And whatever might have been the effect of these renewals under other circumstances, the consent of

Footnote

* B. iii. tit. 3, s. 66.† B. i. tit. 23, s. 44.

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If the Appellants had not been willing that the renewals of the notes should take place, it was in their power to have guarded against the consequences of that measure. Upon the intimation of the dishonour of the bill, upon which Mr. Mackenzie stood bound, his representatives might have insisted, that the Bank should immediately close the account, and receive their proportion of the loss, corresponding to Mr. Mackenzie's note for 2,000 l ., but so as not to exceed that sum.

In the course of the argument the following observations were made:—

The Lord Chancellor :—If this were the case of an entire debt, there is no doubt that giving time would discharge the surety. It is clear that, in the circumstances stated, J. Spence could not have been called on for contribution. The transaction with the Bank effected an absolute discharge. It is a new and important question. Suppose the guarantee had been confined to the 2,000 l .; was it not discharged by the transaction with J. Spence? Is it not discharged to the amount which J. Spence would have been liable to contribute? If the giving up of the bills does not effect a discharge of the sureties, then the amount of the dividend upon them is to be received for the sureties. But is a surety to be put in the situation of being driven into the account of a bankrupt estate, and the question what it may or may not pay? In another point of view, the bills of Robertson and Stein,

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Lord Redesdale :—In the account, credit is given for part of the debt from Robertson and Stein; the Respondents give up the old note, take a new security for a different one from John Spence, and, as part of the transaction, give up to him the bills from Robertson and Stein, and the benefit of the dividends.

The principle established in the case of Deering v. Lord Winchelsea is universal, that the right and duty of contribution is founded in doctrines of equity; it does not depend upon contract. If several persons are indebted, and one makes the payment, the creditor is bound in conscience, if not by contract, to give to the party paying the debt all his remedies against the other debtors. The cases of average in equity rest upon the same principle. It would be against equity for the creditor to exact or receive payment from one, and to permit, or by his conduct to cause, the other debtors to be exempt from payment. He is bound, seldom by contract, but always in conscience, as far as he is able, to put

Footnote

* 8 T. R. 310. See the note in Selwyn's at N. P. vol. i. p. 75.† See Toussaint v. Martinnant , 2 T. R. 105.

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19 March.

The Lord Chancellor :

—This is a question as to transactions between a creditor and a principal debtor and sureties; and, as to the effect of this transaction, upon the liability of co-sureties. The judgment of the Court below cannot stand in all its parts. It will be necessary, in moving judgment here, to state clearly the doctrines on which we proceed. In the mean time the agents must give answers to the following inquiries: l. What became of the bills drawn by George Spence, and accepted by Paterson? Whether the bills have been proved against the estates of the several parties, and whether any and what dividends have been received? 2. In what state the bills stand, and who is entitled to a dividend, if made? The result of these inquiries may assist those who have to advise the House upon the judgment. The case is extremely important, as it regards the doctrines of equity upon the liability of co-sureties.13 June.

The Lord Chancellor :—In this case, it appears that the firm of James and George Spence

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It is represented in the printed case, on the part of the Appellants, that although the securities are in form separate, it was in fact one individual transaction. This is a very important part of the question. If the securities were in effect separate, then each surety had nothing to do but with his own; but if it was one transaction of joint suretyship, then, when there has been a dealing with any of them, the others have a right to look to that dealing as affecting them. When the notes were nearly due, it appears that by an arrangement between Messrs. Spence and the Bank, other notes, granted by Messrs. Spence, and indorsed by the sureties, were to be substituted, payable three months after date; and the original note, with the indorsement of one

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Under these circumstances, the Bank refused to delay their remedy upon the old note for three months, or to accept of the new note without the indorsement of Mr. Mackenzie; and when the original note fell due, it was protested, and an action was brought upon it against the representatives of Mr. Mackenzie. By the first interlocutor in this action, it is found that the Bank could not have proceeded against the sureties without giving them a proportionable and equitable relief of the debts which they had been able to recover from the original obligants; that the bills of Robertson and Stein had been given up merely for the purpose of drawing the dividend, which, being received, were credited in the account, and the bills returned to the Bank; that Mr. Mackenzie having assented to a renewal, his representatives were not entitled to be relieved from the payment of the original bill; that after the intimation of the dishonour they might have brought the account to a close, and paid their proportion of the loss; that there was no proof that the Bank had given a preference to any of the obligants; and as the balance due to the Bank, after giving credit for the monies recovered from the other obligants, exceeded 2,000 l . that the Pursuer was entitled to recover.

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On the part of the Appellants it is contended, in contradiction to the finding of this interlocutor, that the bills of Robertson and Stein were given up, not merely for the purpose alleged, but actually and irrevocably, and that the situation of the sureties by that act was altered, and the obligation of Mackenzie thereby released.The four promissory-notes may be considered as one transaction of suretyship. They are separate in form; but the effect in equity, as to the obligation of the parties, was such, that the creditors were bound to act as if all the notes formed one transaction of suretyship. The ground of complaint against the interlocutor was fully argued at the bar, and is stated in the cases. It will be necessary, in considering the merits of the appeal, to attend particularly to the matter of the correspondence. An application having been made to the Bank by Messrs. Spence for delay of payment, and the delivery of their note indorsed by Mr. John Spence, by a letter of the 27th of April 1812, Messrs. Spence are informed that the Bank will accept, for the balance stated to be due, a new bill from them, jointly and severally with the former sureties. By another letter of the same date, it appears that the bills of Robertson and Stein are directed to be given up, together with the original note for 2,000 l . indorsed by Mr. John Spence. In consequence of these transactions it is insisted by the Appellants, that the four indorsers of the notes are to be considered as co-sureties, and ought to have in equity all the relief usually given in favour of sureties when the creditor deals with the principal debtor. Their situation is not to be made worse than if no such

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Lord Redesdale :—This is a case of very great importance, as applicable to all questions where one or more persons make themselves debtors for others as sureties. The cross-appeal was waived; it quarrelled with the principle on which the judgment of the Lord Ordinary proceeded: but that principle was perfectly correct. The interlocutor finds, that “when the bills became due, although Mr. Mackenzie was not a joint obligant for the 8,000 l . and could only be liable upon his separate obligation for the 2,000 l .; yet as the Bank were well acquainted with the nature of the transaction, that the four obligants had interposed their security for Messrs. Spence to the amount of 2,000 l . each, in relief of 8,000 l . due by the Spences to the Bank; so the Bank could only proceed against them by giving a proportionable and equitable relief of the debts which they had been able to recover from the original obligants.” That

Footnote

* The Lord Chancellor here read the minutes of the proposed order of the House.

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At the bar it was contended, that the rights and obligations of co-sureties are founded upon a supposed contract between them; and that in this transaction they entered into the obligation without communication with each other. The question depends upon equity, not upon contract; and in this case a contract is to be implied. The decision in Deering v. Lord Winchelsea * proceeded on a principle of law which must exist in all countries, that where several persons are debtors, all shall be equal. The doctrine is illustrated in that case by the practice in questions of Average, &c. where there is no express contract, but equity distributes the loss equally. On the prisage of wines, it is immaterial whose wines are taken; all must contribute equally: so it is where goods are thrown overboard for the safety of the ship; the owners of the goods saved by that act must contribute proportionally to the loss. The duty of contribution extends to all persons who are within the scope of the equitable obligation.The next question is, whether the subsequent findings of the Lord Ordinary are founded in fact; the first is, “that the bills of Robertson and Stein were given up to the Bank merely for the purpose of drawing the dividends.” That is somewhat disputable; and the fact rather different from what is stated in the finding. It is there found that “Mr. Mackenzie had assented to a renewal of the note.” That seems not to be the case, for he died without giving a final consent to the renewal.

Footnote

* 1 Cox, 318; 2 Bos. & Pul. 270.

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The Bank having given time, without obtaining the final consent of Mackenzie, made an arrangement with the other sureties as to three fourths of the debt. The first part of the finding of the Lord Ordinary is right and just in principle: the latter part is wrong in point of fact.Die Merc. 13 June 1821.Find, that the Governor and Company of the Bank of Scotland, having accepted the promissory-note of James and George Spence to John Spence, and indorsed by him and Charles Hunt, in substitution for the balance due on the bills in the proceedings mentioned, drawn by James and George Spence on, and accepted by, Robertson and Stein, are not entitled to make any demand against the estate of James Mackenzie, deceased, upon the indorsement of the said John Mackenzie on the promissory-note of James and George Spence, dated the 1st of December 1810, in the proceedings mentioned, in respect of the said bills drawn by James and George Spence on, and accepted by, Robertson and Stein: further find, that, under the circumstances of this case, the said Governor and Company are entitled to demand against the estate of the said John Mackenzie, on the said promissory-note of the 1st of December 1810, one-fourth part only of the balance which shall appear to be due to the said Governor and

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Footnote

* See Rees v. Berrington , 2 V. J. 540; Nisbet v. Smith , 2 B. C. C. 579; the observations of Eldon, C. in ex parte Gifford, 6 Ves. 807; and see Orme v. Young , Holt's N. P. C. 84. Dunn v. Shee , Id . 399, and Quære Quære .