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You are here: BAILII >> Databases >> Scottish Jury Court Reports >> Berry and Sanderson v. Balfour. [1822] ScotJCR 3_Murray_116 (16 July 1822)
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Cite as: [1822] ScotJCR 3_Murray_116
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SCOTTISH_HoL_JURY_COURT
Page: 116↓
(1822) 3 Murray 116
CASES TRIED IN THE JURY COURT.
No. 12
v.
Present, Lord Chief Commissioner.
A protest on a bill of exchange found to be regularly taken.
An action of reduction and improbation to have a protest upon a bill of exchange set aside.
“Whether the bill in process, dated Edinburgh, 11th January 1819, for the sum of L.385, 18s. 1d., drawn by the pursuers, and accepted by Alexander Elder and Company, was not protested for non-payment on the 14th day of April 1819, by James Lundin Cooper, notary-public in Kirkcaldy, in the usual place of business of the said Elder and Company, at Kirkcaldy, or in the personal
Page: 117↓
The second was a question as to the practice of holding, that a bill noted by a notary for non-payment is equivalent to a protest.
More, for the pursuers, stated—The 14th April was the last day of grace, and we will prove that the notary did not protest it till the 23d. The real question is, Whether any act was done upon the 14th by the notary, or any one authorized by him, which entitled him to certify his having protested it on that day?
Chitty, 279.
II. Bell's Law Dict. 640.
II. Bell, Com. 260, (3d edit.) Ibid. I. 324 and 325, (4th edit.)
On the second issue he referred to Chitty and Bell, to show that the protest must be by a notary.
Jeffrey, for the defender.—This is an action to set aside an apparently regular protest and noting, which is a written instrument of the highest credit; and to set it aside would require overwhelming evidence, and here there is merely the non memini of a single witness.
Frank v. Frank, March 3, 1795. M. 16824.
One witness is not sufficient, especially to cut down a regular deed.
Lord Chief Commissioner.—It is a great
Page: 118↓
It is clear, that a protest on a bill of exchange is as solemn an act as can be done, and it has been well said that it is semijudicial.
Notaries are appointed with much solemnity, their deeds bear credence, and must stand till cut down upon clear evidence. In this case I am not prepared to say that there is no evidence, but the question will be, Whether it is sufficient to cut down this protest?
This question is entirely on the first issue, and if you are of opinion, from the evidence, that the bill was not regularly protested, you will find in terms of the issue.
The best method here will be to consider the case proposed to be made out, and then the case that has been made out.
Mr More states the question here to be, at what time this bill was protested; but his evidence goes to show, that there was no protest. The three witnesses called, merely state however, that they do not recollect the protest having been taken; but this is for your consideration, and you will say, whether you consider
Page: 119↓
Verdict—“Find on the first issue for the defender, that the bill was regularly protested.”
Counsel:
Moncreiff and More, for the Pursuers.
G. J. Bell and Jeffrey, for the Defender.
Solicitors: ( Macmillan & Grant, w. s. and James Donaldson, s. s. c.)