John Mitchell, Merchant in Edinburgh, v. Alexander Brown, Merchant there
Date: 8 July 1714 Case No. No 62.
After the holder of a bill, had written on the back of it, that he had drawn a separate bill for the amount; that second bill having been dishonoured, it was found that the first might still be effectually indorsed away.
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Alexander Brown having accepted a bill drawn upon him by Thomas Scot, merchant in London, 20th October 1713, for the sum of L. 51:58. Sterling, payable to himself, or order, the first of April thereafter, to reimburse Thomas Scot, of a bill drawn by Alexander Brown upon him, payable to Robert Wilkes, on the said first day of April: Upon the 3d of the said month of April, when both these bills fell due, Mr Scot sustered the bill, payable by him to Wilkes, to be protested for non-payment, and drew a bill upon Brown for the L. 51:58. payable to Alexander Mitchell at London, or to his order; and immediately, of the very same date, writes upon the back of the bill, formerly accepted by Alexander Brown, “April 3d 1714, This day, at 14 days sight, drawn on you for the contents of this bill, payable to Alexander Mitchell, or order, value passed to your credit, Thomas Scot” Alexander Mitchell indorsed this new bill to his brother, John Mitchell; who having protested it against Mr Brown for non-acceptance, returned the same to London. Upon which Mr Scot, 11th May 1714, indorsed to Alexander Mitchell the bill formerly accepted by Mr Brown, and noted on the back as aforesaid, who reindorsed it to John Mitchell. John Mitchell protested the bill against Mr Brown for not payment, and charged him with horning; who suspended, upon these grounds: 1mo, The indorsation, 11th May 1714, ought not to be regarded; because, long before, the bill was passed by Scot, the indorser, to the suspender's accompt; of credit, as the charger knew. And the cause of the suspender's accepting this bill, payable to Mr Scot's order, was his accepting the bill to Mr Wilkes, as is instructed by the letter of advice to which Mr Mitchell's bill relates; therefore, till Wilkes be cleared, the suspender cannot pay Scot's bill. 2do, Mr Scot having indorsed the bill charged on when he was bankrupt, not for money presently advanced, but for satisfying his bill of the 3d April, protested for not acceptance, the indorsation is reducible upon the act of Parliament 1696, as was decided 16th January 1713, Campbell of Glenderuel contra Graham of Gorthie, p. 1120.
Answered for the charger: 1mo, Esto the bill charged upon had been accepted by the suspender, for Mr Scot's reimbursement of a bill drawn upon him, payable to Mr Wilkes, that could not hinder Mr Scot to sell this bill, or procure credit upon it, to any he pleased; nor could it hinder the charger to lend his credit upon an accepted bill: What was between Brown, Scot, and Wilkes, was among themselves; but a plain accepted bill of exchange was transmissible without any embargo. And suppose the charger knew that Mr Scot had this accepted bill, to reimburse him of another bill he had accepted payable to Wilkes, that could not hinder the commerce of the other bill. Yea, what if Mr Scot procured credit upon this bill to loose Wilkes' bill, which any one would advance, trusting to the suspender's solvency? If Mr Scot did not loose Wilkes' bill, that cannot be imputed to Mr Mitchell: And the suspender was to lay his account, at his accepting the bill charged on, that it might go through many hands; and he was only to rely upon Mr Scot for his paying the other bill to Wilkes. As to the objection of indorsing the bill, after it had been past to the suspender's account of credit, and so previously noted on the back, it is answered, that the bill was not simply past to his credit; in which case it could not have been indorsed to another; but only qualificate, upon condition that he answered the other bill to Mr Mitchell; and seeing he refused to do so, it remained as a bill still to be indorsed, and very naturally, to Mr Mitchell. 2do, Suppose Mr Scot had been bankrupt, the 11th May 1714, when he indorsed the bill charged on, he is not alleged to have been in these circumstances the 3d April preceding; and the indorsation, 11th May, was but in consequence of the bill drawn 3d April, and the same in effect as if it had been then indorsed, by the precedent note upon the back thereof, of the same date with the other bill. Besides, how can the act of Parliament 1696 be brought to regulate a bill of exchange, drawn by a London merchant, and indorsed to a London factor.
