Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by ALEXANDER BRUCE, ADVOCATE.

William M'Illmorrow
v.
Whitefoord of Dunduff, and others

Date: 30 November 1716

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The said William M'Illmorrow having accepted a bill payable to Whitefoord of Dunduff, he obtains the suspension; but, before the suspension arrived, Dunduff had put the bill out of his person, by indorsing it to his baron-officer Gilbert Kennedy, only so far in trust for the indorser, that it was for taking off a debt due by the said indorser to a third party: yet the suspender having intimated the suspension both to Dunduff and Kennedy, the said Kennedy nevertheless registrates the bill, and charges; and a poinding is made in his name, at which Dunduff was present, and gave orders. Whereupon M'Illmorrow gives in a complaint to the Lords against them both, for contempt of their authority, in poinding after a suspension was intimated.

Answered for the defenders,—No contempt, because the suspension did not meet the diligence; for the charge being at the instance of the indorser, a suspension against Dunduff, who was denuded by the indorsation prior to the suspension, could not stop diligence at the instance of the indorsee, more than the indorser had never been creditor in the bill. For, when a bill is indorsed, the indorsee is not only a procurator in rem suam, as in the case of assignations, but is vested in the right itself, in the same case as a bag of money had been delivered to him; and no right remains in the person of the indorser more than the bill had been accepted directly payable to the indorsee: to whom, though the suspension was intimated, yet this could not, upon the foresaid ground, put him in mala fide to do execution on the bill.

Replied for the complainer,—That the indorsee being to uplift the money, and apply it for extinguishing a debt due by Dunduff to a third party, it was plain that Dunduff stood still in the property, as he in whose favour it was accepted; and having indorsed it to Kennedy for no onerous cause respecting the said Kennedy, he clearly remained Dunduff's trustee, to this effect, that he should uplift the money, and therewith extinguish the debt due to the third party by Dunduff. and Dunduff's creditors arresting would have been preferable to the said third party : as was found in the like case, 17th Jan. 1706, the Lord Ross against Gray of Newton, which was yet more favourable; for there the creditors in the bill had ordered the indorsee verbally to pay to a third party; whereas here there is nothing to instruct the third party's right.

The Lords found, That the defender was guilty of contempt of their Lordships' authority, and found him liable in damages and expenses.

Act. Jo. Kennedy. Alt. Ja. Ferguson. M'Kenzie, Clerk.

Vol. II. No. 39. page 51.