A bill being protested at the instance of the drawer, and the protest recorded, but no marking of this made on the face of the bill, a creditor of the drawer uses an arrestment in the hands of the accepter. The bill is indorsed subsequently for value, and the indorsees are preferred to the arrester.
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John Duncan, wright in Perth, and David Gordon at Mill of Cairnie, granted (17th April 1801) a joint bill to Jean Duncan, for £14. 10s. at one month's date.
The bill was protested 5th June, by Jean Duncan, and the protest recorded the same day.
David Freer, Writer to the Signet, (12th June 1801) used an arrestment in the hands of Gordon, in virtue of a depending action at his instance against Jean Duncan.
Jean Duncan having indorsed the bill for value, to John Richardson and Company, it was, 13th June, protested at their instance, recorded 15th, and a charge of horning given to Gordon on the 19th June.
Gordon suspended the charge, and raised a process of multiplepoinding, in which Freer also appeared, pleading upon his arrestment. These processes were (26th November 1803) conjoined, and the Lord Ordinary (19th June 1804) “in the suspension, found the letters orderly proceeded; and in the multiplepoinding, preferred the chargers John Richardson and Company, to the fund in medio.” To which the Court (19th February 1806) adhered, by refusing a petition with answers.
Freer reclaimed, and
Pleaded: A bill of exchange which has been protested, and the protest recorded, loses its extraordinary privileges, and can only pass from hand to hand by assignation; Ersk. B. 3. Tit. 2. § 31. Since in this case the bill has merely been indorsed to the chargers, it has not yet been legally made over to them, and their whole subsequent procedure is consequently inept.
Answered: Bills pass by indorsation, as well after protest as before; Macadam against Macwilliam, 14th June 1787, No. 171. p. 1613. Besides, here there was nothing in the appearance of the bill which could make it known to the indorsees that it had been previously dishonoured; that any third party had an interest in it, or that its negotiability had been anywise impeded. All that they saw was, that it was past due.
The Court (18th November 1806) “adhered.”
Lord Ordinary, Glenlee.Act. Hutcheson.Agent, D. Freer, W. S.Alt. W. Erskine.Agent, Jo. Cook.Clerk, Mackenzie.
Fac. Coll. No. 258. p. 579.
