An arrestment of the sum in a bill used before the drawer's subscription was adhibited, was preferred to a subsequent onerous indorsation.
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Ludovick Gordon, merchant in Inverness, drew a bill on Sir Robert Gordon, for L. 237 : 13 : 7, which was accepted.
The drawer's name was in the body of the bill; but his subscription had not been adhibited, when William Neilson used an arrestment in Sir Robert's hands.
Ludovick Gordon, after this, subscribed as drawer, and indorsed the bill to Francis Russel.
Sir Robert raised a multiplepoinding; and the cause having been reported, ‘The Lords found it relevant to prefer the arrester, that the bill was not subscribed by the drawer at the time it was accepted by Sir Robert Gordon, nor before his arrestment; and sustained the same probable by William Neilson, prout de jure; and separatim found, that the indorsation being made in prejudice of William Neilson's prior diligence, was reducible, at his instance, upon the acts 1621 and 1696, in so far as the indorsation was granted in satisfaction of anterior debts; but sustained the indorsation pro reliquo.’
In a petition, an attempt was made to make out, 1mo, That the bill was not blank in the creditor's name, at the date of the acceptance; and therefore did not fall under the act 1696 against blank writs. 2do, That supposing the deed to have been incomplete at the date of the delivery to the indorsee or his agent, it was put in their power to complete it before it was indorsed, which they actually did, and that before it appeared in judgment; therefore it must be considered as complete from its date. 3tio, That the objection was probable only scripto vel juramento of an onerous indorsee. 4to, That the indorsation did not fall under the statutes 1621 or 1696, relative to bankruptcy, as there was instant value given.
In an answer it was argued, That the document was no bill at the time of the arrestment, being blank as to the creditor. It was an acceptance in favour of no one, since it constituted no body creditor before the subscription of the drawer. The money was lawfully attached before it was brought under the comprehension of any bill. The writing cannot be considered as a bill at the date it bears; because the fact is otherwise, and there intervened a mid impediment to hinder it from becoming a bill at all. As to the mode of proof; the nature of the thing in matters of falsehood, fabricating, or antedating, requires a proof prout de jure. Neither the act of 1621, nor that of 1696, make any difference betwixt indorsations of bills to create preference, and any other transmission of a bankrupt's effects for the same purpose.
The Lords adhered, ‘in respect it was not a bill until it was signed by the drawer.’ See No 34. p. 1435. and No 95. p. 1508.
For Petitioner, Ro. Craigie.For Respondent, Ro. Dundas.
Session Papers in Advocates' Library.
