A protest on a bill, which bore to be payable at no certain place, was sustained, taken at the head burgh of the shire, where the debtor had his residence.
Click here to view a pdf copy of this documet : PDF Copy
After Magbyhill had poinded a parcel of sheep from Glendinning, a tenant, upon his protested bill; the other creditors of Glendinning arrested in his hand and pursued a furthcoming. In which it was objected to his poinding, That it had proceeded upon a bill not duly protested, in so far as, notwithstanding the protest was ex facie formal; yet in reality, neither the procurator for Magbyhill, whom the instrument bore to have protested the bill, nor Glendinning the acceptor, against whom the bill (which bore no place of payment) was protested at Peebles, which was not the place of his residence, were at the time present.
Whereof the Ordinary having allowed a proof, the fact came out by the depositions of the instrumentary witnesses to be, that Magbyhill had sent the bill to John M'Ewan clerk of Peebles, to whom one of the witnesses was apprentice, and the other a servant, with orders to protest it: That M'Ewan delivered the bill to the witnesses, desiring them to write out a protest thereon, and to insert therein the name of John Hunter indweller in Peebles, procurator for Magbyhill; which accordingly they did, and subscribed along with the notary as witnesses; though neither the said John Hunter nor Glendinning the acceptor was present.
And the arresters having argued, that the poinding on such null protest was a spuilzie, at least that it could afford no defence against their furthcoming; the Lords, upon the Lord Ordinary's report of the case, ‘Sustained the defence, that Magbyhill, as creditor to Glendinning, having bona fide proceeded to diligence, his poinding his debtor's sheep, by virtue thereof, was not a spuilzie;’ and, by a plurality of voices, found, ‘That he was not bound to restore the sheep themselves, nor to account for the value of them to the pursuers, till payment were made of the debt, on which the diligence proceeded; and remitted to the Ordinary to proceed accordingly.’
So far as concerned the spuilzie, the Court was unanimous; as bona fides must always save from pains and penalties. But as to the point of right, the case was not so clear. Had the question been only with the debtor, the poinder's bona fides might have entitled him to retention, till he obtained payment of his debt. Thus a creditor having proceeded to poind bona fide, not knowing of his debtor's death; in a process of repetition at the executor's instance, retention was sustained to the poinder, upon the debt for which the poinding had proceeded, December 10. 1707, Lees contra Dinwoodie, Fountainhall, v. 2. p. 402. voce Compensation, Retention; but as bona fides has no influence in a competition, the doubt was, how it could bar the furthcoming?
And the sooting the Court took it on was, That an arrester is subject to every exception competent against his debtor; wherefore, as retention would have been competent against the debtor, so it also is against his creditor arrester. A consideration of equity also concurred; that here there was no more than a catch by the arresters, who at the time of their arrestments knew as little of the defect of the protest as the poinder did. See December 7. 1748, Christie and Company contra Fairholms, voce Fraud.—See p. 1167.—See Compensation, Retention.
Kilkerran, (Arrestment.) No 16. p. 44.*** The same case is reported by D. Falconer:
Montgomery of Magbyhill, factor for the Earl of March, obtained a bill from Robert Glendinning, one of the tenants, for his arrears; and thereupon poinded a parcel of sheep belonging to him; upon which his other creditors arrested in Magbyhill's hands, and pursued a furthcoming.
In this process it came out, that the bill had never been protested, but the notary had returned a false execution; and thereupon the arresters pleaded, that the goods were in Magbyhill's hands, not habilely affected; and so were still the goods of their debtor, and behoved to be made furthcoming to them.
Pleaded for Magbyhill, That he had the goods in his hands optima fide, and could retain them till he got payment of his debt; this would be good against the owner, and must be good against his creditors who plead in his right; since an arrestment does not transfer the property, and it is tritissimi juris that compensation may be pleaded against an arrester.
The right of retention was found available to a creditor who had poinded after his debtor's death, being ignorant of it; Fountainhall, v. 2. p. 402. 10th December 1707, Lees against Dinwooddie, voce Compensation, Retention.
Pleaded for the creditor That bona fides is of no effect in a competition between creditors, and he who claims a preference on his diligence, must show it to have been duly executed. The creditors apprehend retention could not have been pleaded against Glendinning; for there being no protest, the poinding was unwarrantable, and spoliatus ect ante omnia restituendus; but supposing it competent against him, it will not follow, that it can be obtruded to his creditors; and apprisings and adjudications will often be wholly reduced in competitions, which would be sustained as securities against the debtor.
Supposing the protest actually taken, as it bears; the diligence was null, as it was neither personal, nor at the dwelling-house of the debtor, nor at the place of executing the contract, but at Peebles.
The Lords, 8th June, sustained the defence that Magbyhill, as creditor to Glendinning having bona fide proceeded in diligence, his poinding his debtor's sheep by virtue thereof, was not a spuilzie; and found, that the said defender was not bound to restore the sheep themselves, or hold compt for the price, or Value to the pursuers, until payment was made of the debt on which the diligence proceeded. And this day refused a bill and adhered. See Compensation, Refention.
Reporter, Lord Minto.Act. Hay.Alt. H. Hume.Clerk, Forbes.
Fol. Dic. v. 3. p. 76. D. Falconer, v. 1. p. 99.
