business which he was then taking up in Inverness. John Fraser had not been their customer before; they knew nothing of him, except that he had been in the employment of a respectable merchant who was one of their customers. On Saturday the 12th of April, 1879, two days after the bill became due, they caused notice to be given to the appellant, and also to Macdonald, both of whom resided at some little distance from Inverness. But on the following Monday, before any reply had been or could reasonably have been expected to be received to these notices, they gave up this bill to John Fraser in exchange for £6 cash and for another bill, which when produced was signed in blank with the same names, and was filled up by John Fraser for £70, being the bill now in question. It is impossible for the respondents to contend that any conduct or silence on the appellant's part caused them to take either the first or the second bill, or to abstain on the 14th April from doing anything for their own security which they would otherwise have done. The respondents, on the 14th July, 1879, before the second bill became due, and again on the 17th and 21st July, when it was overdue, gave notices to the appellant; and on the 29th July they were informed that he denied his signature to, and his liability upon, that bill. There is no principle on which the appellant's mere silence for a fortnight, during which the position of the respondents was in no way altered or prejudiced, can be held to be an admission or adoption of liability, or to estop him from now denying it. What took place during the interval was unknown to the respondents, and it has, in my opinion, no tendency to show that, in point of fact, the appellant then was, or admitted himself to be, or intended to become, liable. He communicated as early as the 18th or 19th July with Mr. M'Gillivray, a law agent, expressly on the footing that his name had been forged, and that he was not liable. It is plain that Mr. M'Gillivray was desirous, if possible, to get some settlement made by which criminal proceedings might be avoided. The appellant was also quite willing that such a settlement should be arrived at, if it could be done without making him liable. No such settlement, however, was arrived at, and I am unable to discover in the communings which then took place any ground in fact or in law, on which the appellant ought to be held to have become liable on the bill by reason of those communings, if he was not so before. The question, therefore, in my judgment is only one of fact, viz., whether the appellant did or did not authorize or assent to the use made of his name on the 14th April by John Fraser, and it appears to me that the onus probandi on this point rests entirely on the respondents, it being admitted that the signature to the bill of the 14th April is not in the appellant's handwriting. The question, I think, turns altogether upon what took place when the appellant met John Fraser on that day. If it is shown that he then knew, or had reasonable grounds to believe, that a new bill with

his name upon it had been given by John Fraser to the respondents, the conclusion, under all the circumstance, would be inevitable, that he assented to, and became bound by the use so made of his name. On the contrary supposition it is, of course, imposible to hold that he assented to that of which he was ignorant and had no reason to believe. This is in a great measure, a question depending upen the credit to be given to the witnesses on each side. If John Fraser and his father are believed. the case against the appellant is established, but I am unable to place any reliance whatever upon the evidence of either of those persons. The Lord Ordinary, who heard and saw the witnesses. gave credit to the appellant, and refused it to the Frasers. Taking the case as it stands upon the evidence of the appellant and of Macdonald, both of them distinctly deny knowledge that the second bill had been given, and a fortiori, that it had been given in their names; the appellant says that he was solemnly and positively assured by John Fraser that the first bill had been taken up, not by way of renewal, but by payment; and the assurances given to Macdonald were that he "had squared it." I cannot but say that some of the circumstances, as they appear upon the evidence of these two persons, are to my mind suspicious and unsatisfactory. If the burden of proof lay upon the appellant, I might perhaps doubt whether he had satisfied it But the burden of proof is on the respondents, and it is impossible, merely because there are some suspicious circumstances not satisfactorily explained, to hold a man liable upon a bill which he did not sign or authorize, and of the existence of which he swears that he was ignorant. After much consideration, I think that all the circumstances admit of explanation upon the hypothesis that the appellant was thinkiug of the first bill only, and had no idea that a second bill, also bearing his signature, had been given on the 14th of April as easily, or more easily, than they do upon the contrary supposition. Evidently he had no sensitive feeling on the subject of forgery, so long as he did not himself suffer by it; he condoned it with great facility to John Fraser; he did not wish to inform against him; he was willing to remain on friendly and familiar terms with him, and perhaps also to squeeze out of him some temporary accommodation as the price of his silence, without regard to the difficulties he might be under, if he had really himself found the money to take up the first bill. But how that money was found he might not choose to inquire. The document dated the 15th April confirms, as far as it goes, the appellant's statement that John Fraser did then assure him that there had been no renewal of the first bill, at all events in the appellant's name. The fact of the acknowledged forgery might suggest precautions against future forgeries, though there might be no knowledge, or belief, or suspicion, that any such had already taken place. The appellant

might not unreasonably consider it a proper precaution against any such possible repetition of the offense to retain the first bill, to admit some persons whom he thought discreet to his confidence about it, and to have, under John Fraser's own hand, what in truth amounted to an admission of the forgery of that document, and to an acknowledgment that he had down to the 15th signed nothing for John Fraser's accommodation. The possession of those papers gave him a strong hold over John Fraser. With the first bill in his own hands he had no longer anything to fear from the notice he had received from the bank; and he might think it the most prudent course to abstain from making any communication which might place him in the dilemma of either having to discover John Fraser's guilt, or seeming to admit that he had himself been liable on the bill. I do not say or think that his conduct, if it is to be thus explained, was commendable or satisfactory; it was not such as might have been expected from a scrupulous man with a strong sense of moral propriety; but it was by no means, on the other hand, such as to require for its explanation that he should have had in his mind any belief, or even suspicion, that another forgery of his name had taken place on the 14th April, contrary to the positive assurances which he states that he had received from John Fraser. The burden of proof is, as I said before, upon the respondents. In my opinion, they have failed to satisfy it. I think, therefore, that this appeal ought to be allowed, and I move your lordships accordingly.

LORD BLACKBURN.-My Lords: This case comes before your lordships by way of appeal from the First Division of the Court of Session against an interlocutor, by which the majority, consisting of the Lord President. Lord Deas and Lord Mure, reversed the interlocutor of the Lord Ordinary (Lord Adam), Lord Shand dissenting. [His Lordship went through the facts of the case, and continued:] The evidence of the appellant and of Fraser, as might be expected, is in direct conflict. The Lord Ordinary and Lord Shand believe McKenzie to swear truly when he says that he never knew or suspected that his name was on the second bill till he got the intimation of the 14th July. The Lord President and Lord Mure believe, directly in contradiction of his testimony, that he was aware of it. Lord Deas, I think, pro⚫eeds upon another ground. Before examining the evidence, I wish to consider what it was relevant to prove, for I think that some confusion has arisen below from not keeping the uifferent points separate. As it is not now disputed that none of the signatures were written by Mr. McKenzie, being, in fact, all written by Fraser, the acceptor, the burden of proving that he was liable on them, rests on the bank. If McKenzie authorized Fraser to write his name for him, he gave him a mandate to sign, and is, of course, liable, and there was no forgery on the part of Fraser. This is a question of fact, depending on the evidence. If I thought it was satisfactorily proved that Mc

Kenzie, before Fraser uttered the bills with his name upon them, knew that he was going to do so, and took no steps to hinder him, I should not have much hesitation in drawing the inference that he did authorize him. But even though it were not made out that the signatures were authorized originally, it still would be enough to make McKenzie liable if, knowing that his name had been signed without his authority, he ratified the unauthorized act; then the maxim, Omnis ratihabitio retrotrahitur et mandato priori equiparatur, would apply. I wish to guard against being supposed to say that, if a document with an unauthorized signature was uttered under such circumstances of intent to defraud that it amounted to the crime of forgery, it is in the power of the person whose name was forged to ratify it so as to make a defense for the forger against a criminal charge. I do not think he could. But if the person whose name was without authority used, chooses to ratify the act, even though known to be a crime, he makes himself civilly responsible just as if he had originally authorized it. It is quite immaterial whether this ratification was made to the person who seeks to avail himself of it, or to another. I can not but think that the Lord President confuses two separate propositions of law; one to which I fully assent with another, which is that on which Lord Deas, as I understand him, bases his judgment, to which I do not assent without qualifications which prevent its being applicable to this case. As I have already said, I think if he ratified to anybody or for any purpose the act done by Fraser as professing to be his agent, that for all civil purposes enured to make him liable just as if he had originally authorized that act, and his conduct, and silence combined with his conduct, may prove such a ratification; and if the phrase" adopted it as his genuine signature" is to be understood as meaning that he ratified, L quite agree with what he said. And I agree that, though he did not ratify the act of Fraser, yet he may preclude himself, bar himself by a personal exception, from averring against the bank that the signature was not genuine. Lord Deas says: “A duty lies upon a party whose name is forged not to do or say anything that may mislead a bank. It is his duty not to say anything that may so far deceive a bank as to enable a forger to escape from justice, and thereby, for anything that he can tell, prevent the bank from recovering from him full indemnity. He is not entitled to speculate upon the consequences that may ensue if the bank is prevented from going immediately against the forger. He is bound to take for granted that the result will be to prevent them from recovering. on the bill, which otherwise they would." I agree that if he thus leads the bank to believe in the genuineness of the signature till it has lost some opportunity of recovering on the bill which, if the bank had known of the forgery, it might have used, it would be a sufficient alteration in the bank's position to preclude him as against the bank..

But when Lord Deas says, "In cases of this kind where he has peculiar means of knowledge whether his signature is forged or not, he is not entitled by saying or doing something, or not saying or doing something, to lead his neighbor to think that his signature is genuine, to his neighbor's loss," he goes further than I am inclined to follow in the words "by not saying or doing something," and when he says, "There was here not only a moral but a legal duty on the part of the suspender to have informed the bank that his signature to the first bill was a forgery, and if he had done so there would not have been a second bill." I not only doubt his position that there was a legal duty then to have informed the bank, but I deny his conclusion of fact. As has been already pointed out, the second bill was uttered to the bank before McKenzie, with the utmost diligence, could have informed the bank that the first bill was forged. It would be quite a different thing if it were proved that McKenzie knew that the bank had put the second bill with his name on it to Fraser's credit, and knew that at a time when he had reason to believe that he would be permitted to draw against it. His silence then would certainly prejudice the bank, and would afford very strong evidence indeed that McKenzie for Fraser's sake thus ratified his act for a time; and a ratification for a time would, I think, in point of law, operate as a ratification altogether. But if McKenzie, as his case is, first knew that the bank had taken the second bill on the faith of his forged signature on receiving the intimation of the 14th of July, he knew that the bank were not going to give further credit to Fraser on the faith of that signature, and that all the mischief was done already. I can not think that, even if McKenzie had gone so far in his endeavors to shield Fraser from the consequences of his criminal act as to make himself liable to criminal proceedings for an endeavor to obstruct justice, that would bar him from averring against the bank that the signature was not his. Certainly I think that his not telling the bank on the 15th July nor till the 29th July that it was a forgery, and so letting them continue in the belief that it was genuine, if he had not induced it, could not so preclude him if, as I think, was clearly the fact here, the bank neither gave fresh credit in the interval, nor lost any remedy which, if the information had been given earlier, they might have made available. The principles which I have above assumed to be law have been recognized in England ever since the clear judgment of Parke, B., in Freeman v. Cooke, 2 Ex, 654. The Scotch cases cited at your Lordship's bar show that those principles have not been so clearly recognized in Scotland. I leave to my noble and learned friend the task of commenting on the Scotch decisions, merely saying that I have read them all, and that every one, I think, is perfectly consistent with the principles I have stated, and I think their justice must be acknowledged by all, As to the question whether the

evidence of McKenzie is substantially true or not, I shall be more brief. [His Lordship went through the evidence of what passed when the appellant was made aware of the forgery of the first bill, and observed that Fraser's evidence was, on the face of it, so improbable that he could not trust it. He then continued:] As to what happened afterwards, I have no doubt that McKenzie would have been quite content to say nothing about the forgery, if Fraser or his friends took up the bill and freed him from responsibility. And I have no doubt that he delayed making the charge of forgery from the time when he received the intimation till the 29th July, in hopes that they would do so; but, as I have already said, I do not think that he thereby made himself liable to the bank, unless the bank was in some way prejudiced by that delay, which in this case it was not. I therefore agree in the motion that has been made, that the interlocutor should be reversed.

LORD WATSON.-My Lords: The process of suspension in which the present appeal is taken was raised by McKenzie, the appellant, in order to obtain a stay of summary diligence which the respondents were proceeding to use against him on a bill of exchange at three months for the sum of £70, and bearing date April 14, 1879, upon which his name appears as that of a drawer and indorser, along with another person of the name of Macdonald. The sole ground of suspension stated for the appellant is, that the signatures upon the bill charged on bearing to be his, are forgeries. The respondents on record denied that allegation, but the Lord Ordinary, who gave judgment in the appellant's favor, held that its truth was established by the evidence. In the Lower House the respondents do not seem to have impeached the soundness of that conclusion; and the Lord President accordingly states that “although originally the chargers denied that allegation, it must now be taken that the complainer's signature certainly is a forgery." The majority of the First Division of the Court of Session, consisting of the Lord President, Lord Deas and Lord Mure, gave judgment against the appellant upon these two grounds: 1. That the appellant was, to use the language of the Lord President, “perfectly aware," or at least "had very good reason to believe that the first forged bill was replaced by the second forged bill,” and that he "permitted that to be done, and acquiesced in the proceeding;" and 2. That, assuming such knowledge and acquiescence on the part of the appellant not to be established, he must nevertheless be held to have adopted the bill charged on, by reason of his failure to give information to the respondent that his signature was forged, after receipt of the notices sent by them in July, 1879. The first ground of judgment assigned by the learned lords constituting the majority, seems to me to negative the idea of forgery. I can not conceive that John Fraser, the drawer of the bill, by whom the signature of the appellant was admittedly written, can be held thereby to have committed the crime

of forgery according to the law of Scotland, if this signature was written and used by him, as their lordships hold it to be proved that it was, with the permission and acquiescence of the appellant. And it does seem a strange thing that. in the interlocutor under appeal, the respondents are found entitled to costs, but "subject to deduction of any expense that may have been caused to the complainer by the respondents' denial of the averment of forgery." But it is unnecessary to dwell upon these matters, because I agree with your lordships that neither of the views taken by these learned judges is well founded, and, consequently, that the judgment of the first division must be reversed. I have carefully perused the whole proof led by the parties, and the opinion which I have formed upon the facts of the case is precisely the same as that which has been already expressed in the court below by the Lord Ordinary and Lord Shand. The real question arising upon the proof appears to be, whether the account given by the appellant on the one hand, or that given by Jonn Fraser, the forger, and his father on the other, is to be accepted as true; and the weight of testimony appears to me to be on the side of the appellant. Having arrived at that conclusion, I do not think it necessary to criticise the evidence in detail; I therefore pass at once to the second ground of judgment, the alleged adoption of the forged bill by the appellant. It is not suggested that there was any change in the position of the bank between the date of the first notice given to the appellant on the 14th July and the 29th July, when the respondents were informed of the forgery, and it can not, therefore, be alleged that they have sustained any loss or prejudice by his silence during that period. But the three learned judges, composing the majority of the first division, have nevertheless held that such silence is, under the circumstances, sufficient, according to the law of Scotland, to infer adoption of the forged bill by the appellant. I am unable to concur in that judgment, it being my clear opinion that the right view of the case was taken in the court below by Lord Shand and the Lord Ordinary. The question whether a forged bill has or has not been adopted by the person whose signature is forged is, in reality, an issue of fact, and not of law. Still, adoption of a bill may be matter of legal inference from certain ascertained facts; and, in the present case, the inference which has been drawn by the court below, adversely to the appellant, appears to depend upon the fact that, after he came to know in July that the second bill had been discounted with the bank, he kept silence, or at least did not inform the bank of the forgery of his name until a fortnight or thereby had elapsed. The only reasonable rule which I can conceive to be applicable to such circumstances is, that which is expressed in carefully-chosen language by Parke, B., in the case of Freeman v. Cooke, ubi sup. It would be a most unreasonable thing to permit a man who

knew that the bank was relying upon his forged signature to a bill to lie by, and not to divulge the fact until he saw that the position of the bank was altered for the worse. But it appears to me that it would be equally contrary to justice to hold him responsible for the bill because he did not tell the bank of the forgery at once, if he did actually give the information, and if, when he did so, the bank was in no worse position than it was at the time when it was first within his power to give the information. I do not think that the Scotch cases, which have been cited at the bar, bear out the proposition that silence, in circumstances such as occur in the present case, is per se sufficient to imply adoption of a forged bill. I shall now, before concluding, shortly refer to these cases in the order of their dates. Maiklem v. Walker (12 Ct.. Sess. Cas. 1st series, 53), was a case in which two brothers who lived together were, in the year1828, charged jointly to make payment of a bill upon which both their names appeared. A considerable time after the charge was given thegoods of one of the brothers were arrested, whereupon he immediately brought a suspension of the charge and diligence, alleging then for the first. time that his signature to the bill had been forged by his brother, who in the meantime had absconded. The court held that he had made himself liable to pay the forged bill and refused thesuspension, Lord Gillies observing: "Is he to beallowed to acquiesce until the proper debtor makes his escape out of the country, and then to come forward and allege that he has incurred no liability to the holder of the bill?" In Findlay v. Currie (13 Ct. Sess. Cas. 2nd series, 278), the question was one of relevancy, and all that the court decided was, that the charger had made averments sufficient to entitle him to a counter-issue of adoption, in order to meet the issue of forgery taken by the suspender. The substance of the charger's averments was that after notice to him of the bill said to be forged, and a demand for payment, the suspender had an interview with the charger's agents, when he was shown the bill and did not deny his signature, that at a subsequent interview the suspender did not deny his signature, but "begged for time to see the bill,” which was granted. In the meantime hisbrother, the alleged forger, absconded, and he then for the first time denied the authenticity of his subscription to the bill. Boyd v. Union Bank (17 Ct. Sess. Cas., 2nd series, 159), was a decision upon the record, holding the charger's allegations of adoption to be irrelevant. The only allegation of the charger was to the effect that, although the bill was. during its currency, intimated to the suspender, he kept silence, and did not inform the bank that his signature was a forgery. In that case the lord president (Lord Col-onsay) said: "When a party is shown a bill, and makes no objection, and allows the creditor to remain in the belief that it is his signature, he has incurred a ground of liability through the loss incurred by that adoption. That principle might

apply even though he was not shown the bill which is the subject of discussion. If he had allowed the matter to lie over, and through his silence the whole was lost, an obligation might be incurred through that silence." The case of Warden v. British Linen Co. (1 Ct. Sess. Cas., 3d. series, 402) is a decision to precisely the same effect as the preceding. The court there refused to grant a counter-issue of adoption by two coacceptors, both of whom alleged that their signatures to the bill were forged, upon the bare averment that they had taken no notice of a letter addressed to them by the bank, informing them of the existence of the bill, before it was due. In the next case, that of Brown v. British Linen Co. (1 Ct. Sess. Cas., 3d. series, 793), the court sustained the relevancy of the charger's averments, and allowed a counter-issue of adoption. These averments were that the bill was intimated during its currency to the person alleging forgery, that thereafter his agent, acting under his instructions, called at the bank and examined the bill, that the agent did not state that his employer's signature was forged, but, on the contrary, requested that the bank would send him an intimation when the bill fell due, and moreover gave the bank agent to understand that, if the bill was not paid at maturity by the alleged forger, his client wished it to be renewed. None of these decisions appear to me to give the least support to the doctrine that mere silence after intimation, or even after demand for payment of a forged bill, necessarily implies adoption of a bill by one whose .subscription to the bill is a forgery; and accordingly the solictor-general for Scotland mainly relied upon the case of Urquhart v. Bank of Scotland (9 Scot. Law Rep. 508), which was decided by the first division of the court in 1872. The facts established by proof in that case were somewhat peculiar. It was proved that the suspender's signature to the bill charged on was forged; but it was also proved that notice of protest of the bill for non-payment was received by him on or about August 2d, 1871, and that he wrote to the bank on August 23 that his signature was a forgery, his friend and intimate, the forger, having in the meanwhile absconded. It was proved that the forger was subsequently tracked out and apprehended under a criminal warrant, and it was also proved that the suspender knew, or had good reason to know, that the forger had for some years previously been in the habit of forging his name upon bills, and that in June, 1870, he had given the forger money to retire one of those bills known by him to be forged. It is no doubt the case that the terms of the lord ordinary's interlocutor, and of the judgment of the Lower House, ay great stress upon the silence of the suspender las warranting their decision, which was against him. But there were obviously many grounds for the decision other than his silence, and think it must be assumed that the judgment proceeded upon the whole circumstances of the case, and not upon silence alone. All I can say is, that if

these grounds were in view of the court, the case was, in my opinion, well decided. But, if it was intended by the court to rest their judgment upon the mere silence of the suspender, apart from other circumstances-which I greatly doubt-then, whilst agreeing in the result at which their lordships arrived, I should be of opinion that the decision was not only unnecessary, but erroneous. Interlocutor complained of reversed, and interlocutor of the Lord Ordinary of the 3d of February, 1880, restored.

Supreme Court of Missouri, April Term, 1881.

1. In an action against a railroad company by an employee, who was a section hand, for injury by the negligence of the section foreman, to sustain the allegation that the section foreman was incompetent, and the company knew of such incompetency before the accident, it is inadmissible to prove the declarations to the plaintiff of the company's road master, whose duty it was to employ and discharge section foremen, made some days after the accident, and while the road master was still in the employ of the company, that the section foreman was incompetent, and that he wanted plaintiff to take his place.

2. The declarations of an agent can bind the principal only when made with reference to a transaction within the scope of his agency, then depending and when constituting a part of the res gestæ.

Appeal from the Circuit Court of Clay County. Geo. W. Easley, for appellant; W. S. Carrol, for respondent.

son

HENRY, J., delivered the opinion of the court: The plaintiff was employed by the defendant as a laborer on track repairs, and was injured, he alleges, in consequence of the negligence of one Dawson, defendant's section foreman, in having permitted a hand-car to be on the track when the track should have been clear for the passage of trains, and in negligently and carelessly ordering plaintiff to remove the car in the face of an approaching train. It is further alleged that Dawwas incompetent, and that defendant had knowledge of that fact before the injury conplained of occurred. It is also alleged that the the company had negligently allowed piles of wood to be placed and to remain close to the track so as to render it unsafe and dangerous for employees at work on the track. That the handcar was struck by an engine of a train, and thrown against the plaintiff, wounding him severely, and that his escape was prevented by the pile of wood at the side of the track. He sued the defendant for damages and had judgment, from which the appeal is taken. The answer was a general de