Hugh Hamilton, Merchant in Edinburgh, v. Captain James Dalrymple
Date: 31 January 1724 Case No. No 8.
An obligation to deliver a fish debenture, in payment of a quantity of salt, found indorsable as a bill.
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Captain Dalrymple granted an obligation to deliver to Walter Riddel, a fish-debenture, in payment of a certain quantity of salt, as valued by Charles Sheriff in Prestonpans: This obligation was indorsed by Riddel to Mr Hamilton, and by him to William Dundas, his correspondent at Rotterdam; who again indorsed it to Van Vred at Amsterdam. The Captain having refused payment, the obligation was returned to Mr. Hamilton, and the two last indorsations were deleted.
Mr Hamilton pursued the Captain for delivery of the fish-debenture, or payment of the value of the salt, in terms of the obligation. Among other defences for the Captain, it was pleaded, 1mo, That this obligation was not indorsable, as being rather a contract of sale of salt than a bill. 2do, That it had been twice indorsed after it came into Mr Hamilton's hands, and these indorsations deleted; which, as it was unwarrantable, so it could never make the right return to the pursuer; but he ought to have taken a re-indorsation from the person to whom it was last indorsed.
It was answered for the pursuer; 1mo, That the obligation being betwixt merchants, and in re mercatoria, it was very properly conveyed by indorsation; and this was agreeable to their, constant practice. 2do, The practice of scoring indorsations was never before quarrelled among merchants; and, if it were found unwarrantable, it must destroy all commerce; for merchants cannot recover payment from their debtors abroad, without indorsing their bills to some trustee; and it would be hard to oblige the indorsee, in case of not recovering payment, to re-indorse the same, for thereby he would become liable for the drawer.
The Lords repelled the defences, in respect of the answers. See. Sect. I.
Act. Jo. Stewart.Alt. H. Dalrymple, sen.
Fol. Dic. v. 3. p. 74. Edgar, p. 18.
*** The same was found, 25th July 1744, Hope against Neilson; and the indorsee to a blank indorsation of a debenture was preferred to a creditor of the indorser; who, posterior to the indorsation, had arrested in the hands of the Commissioners of the Customs.
