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Scottish Court of Session Decisions >>
Beatrix Colvil Lady Rossie v Colonel Patrick Ogilvie. [1709] Mor 1501 (15 July 1709)
URL: http://www.bailii.org/scot/cases/ScotCS/1709/Mor0401501-090.html Cite as:
[1709] Mor 1501
Subject_1 BILL OF EXCHANGE. Subject_2 DIVISION II.
The Porteur's Action against the Person upon whom the Bill is Drawn.
Subject_3 SECT. II.
Extraordinary Privileges of Bills.
Beatrix Colvil Lady Rossie v. Colonel Patrick Ogilvie
Date: 15 July 1709 Case No. No 90.
A debtor drew a bill upon his factor, payable to his creditor. An arrestment was afterwards laid in the factor's hands for a debt due by the creditor. In a competition betwixt the arrester, and an onerous indorsee to the bill, the indorsation being blank, was presumed of the date of the bill, in order to prefer the indorsee.
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In a competition betwixt the Lady Rossie, who had arrested a debt due to Colvil of Kincardine in my Lord Bargany's hand; and Colonel Ogilvie, who pretended right to the same debt, by virtue of a precept drawn by my Lord upon his chamberlain, payable to Kincardine, and indorsed by him to the Colonel, the precept being of a date anterior to the arrestment, and the indorsation wanting a date: The Lords found, That the indorsation is presumed to be of the same date with the precept, unless the contrary were proved; and therefore preferred Colonel Ogilvie; albeit assignations, blank in the date, in a competition with legal diligence, are presumed to have been made after the diligence; because writs of that nature are ordinarily dated, and it is a kind of fault to omit what is ordinary: Whereas indorsations of bills of exchange are commonly blank in the date; and all the privileges of these are, by the act of Parliament 1696, extended to inland bills and precepts.
