Scottish Court of Session Decisions

This was a suspension of a charge which had been given by George Youngman, the respondent, to Mrs Christina Lang or Service and others, the complainers. This charge was given by virtue of an extract registered protest from the Sheriff-court books of Renfrewshire, and a warrant of the Sheriff thereon, dated 11th December 1866, at the instance of the respondent, indorsee and holder of a promissory-note granted by the complainers. The payee in the promissory-note was Charles Reed, and it was blank indorsed. In respect of this blank indorsement, it was alleged that, prior to 10th December 1866, the note passed into the hands of the respondent, and on that day a protest was extended, recorded, and extracted against the complainers as at the instance of Wadeson and Malleson, solicitors in London, who, the respondent alleged, were his agents, and whose name, it was alleged, was used instead of his by a clerical error. On the following day a second protest was extended and recorded at the instance of the respondent with a view of rectifying this error; and on an extract of this second protest the present charge, now sought to be suspended, was given.

The complainers pleaded,—There having been a subsisting and recorded protest on the said note, at the instance of other parties, against the complainers, at the dates of recording of the protest, and of the charge in question, the procedure last mentioned was and is incompetent, irregular, and invalid.

The Lord Ordinary ( Ormidale) sustained the reasons of suspension. In his note, his Lordship said that the facts, that the promissory-note in question was only once protested, and that an instrument of protest was first extended and recorded at the instance of Wadeson and Malleson, were sufficiently admitted on record. It was not said that there was any new or subsequent indorsation to the charger, or that the note was of new protested at his instance; nor did the charger allege that he had acquired any right to the note from Wadeson and Malleson. He did not proceed, or put himself in a position to proceed, in terms of either 12 Geo. III., c. 72, or of 1 and 2 Vict., c. 114, sec. 12. All that the charger said was, that the instrument of protest was by “a clerical mistake, it is believed, extended, recorded, and extracted at the instance of his London solicitors, Messrs Wadeson and Malleson,” and that, without any new presentment and demand of payment, or noting, or protest, another instrument was, after the lapse of a day, extended and recorded at his own instance. It might possibly be true that it was by mistake (although as to this the charger did not, from the expressions he used, seem quite certain) the protest was, in the first instance, extended and recorded in the name of Wadeson and Malleson, but there was no evidence of this; there was nothing but the unsupported statement of the charger, which was opposed by and directly in contradiction of the formal, notarial, and in every respect ex facie regular and unobjectionable, statement in the recorded instrument of protest at the instance of Wadeson and Malleson. The Lord Ordinary was therefore unable to see how he could sustain the instrument of protest and decree at the instance of the charger as the foundation and warrant of summary diligence, but, on the contrary, he thought that they were irregular and incompetent for such a purpose. The Lord Ordinary, in coming to this conclusion, was not to be understood as giving any opinion to the effect that a bill or promissory-note might not be competently transferred by indorsation after it had fallen due, and of new protested and diligence followed out at the instance of the indorsee, although it had been previously protested, and the instrument of protest recorded at the instance of another party, nor had he found it necessary to decide anything against the validity of an instrument of protest extended without any new proceeding at the instance of a party different from that at whose instance the bill or promissory-note had been noted, although the regularity and competency of this appeared to have been questioned in the case of Swanson v. Archibald, 1838, 16 Sh., 308.

The respondent reclaimed.

Page: 130↓

Watson and Finlayson for him.

Solicitor-General and R. V. Campbell for complainers.

At advising—