Scottish Court of Session Decisions

Subject_1 BILL OF EXCHANGE.
Subject_2 DIVISION IV.

Possessor's recourse against the Drawer and Indorser.
Subject_3 SECT. II.

Negotiation of Bill.

Fergusson of Auchinblain
v.
Mr Quintin Malcolm

Date: 16 February 1727
Case No. No 134.

A bill, payable at a certain day, need not be presented by the porteur for acceptance, before the day of payment.

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A bill was drawn in the Isle of Man, 25th May 1720, by Mr Quintin Malcolm, upon John Fergusson, merchant in Ayr, for the sum of L. 73 Sterling, payable to Mr William Flood, merchant in Dublin, on the 1st September thereafter, at the house of Mr Davie, merchant in Dublin; and farther bearing, ‘to state the same to account as per advice.’ This bill, by indorsation, coming into the person of Auchinblain, he insisted in a recourse against Malcolm the drawer; the bill, upon its falling due, having been regularly protested for not-payment against John Fergusson, upon whom it was drawn.

The defence was, That John Fergusson was broke with the drawer's effects in his hands; and the possessor could have no recourse against the drawer, in that he had not done sufficient diligence; particularly, that he did not present the bill, to be accepted by John Fergusson, having never applied to him before the day of payment. And the defender urged in the general, That it is an indispensable duty in every fort of bills, to offer them to be accepted, and in case of non-acceptance, to protest. And he endeavoured to make it appear, that he suffered by this neglect; for if John Fergusson had accepted, there would have been ready access against him, immediately after the day of payment, to make the bill effectual: If he refused to accept, the drawer, being duly advertised, would have taken care to draw his effects out of his hands.

On the other hand, it was pleaded, 1mo, Where a bill is drawn, ‘as per advice,’ payable at a day certain, it is the drawer's business to give advice of the draught; because, wherever that clause is, the person on whom the bill is drawn, is neither bound to accept nor pay, unless advice be given. The possessor then of such a bill reasonably supposes, that he, to whom the bill is directed, is acquainted of the draught, in order to his making provision for payment: And as the drawer, and person drawn upon, are understood to be in a correspondence, the possessor is likewise, in reason, to suppose, that the drawer will be advised by his own correspondent, on whom he drew, whether the bill is to be honoured or not. 2do, It was pleaded, That it would make no alteration, suppose the clause per advice, had not been in the bill, which was made out from consideration of bills payable on or some time after sight; in which the possessor may lengthen out the term of payment as long as he will; and if he fail to present timeously, it is just he himself, not the drawer, suffer by the omission; but where the money is payable at a precise day, of the drawer's own naming, the obtaining or not obtaining acceptance, neither lengthens nor shortens the day of payment; and the drawer is not one bit the better of acceptance, if the person, drawn on fail before that time. He has therefore no reason to complain of the porteur, that made no demand before the day of payment; and if, in the meantime, the person on whom, the draught is made, become bankrupt, the loss must lie upon the drawer, who gave his debtor so long a day, not the porteur, who was not guilty of any omission.

“The Lords found, That the bill being drawn, payable upon a day and place certain, there was no necessity of a protest for not-acceptance.”

And, upon a reclaiming petition and answers, the Lords considering, that the bill was drawn payable in Ireland, a foreign part, and that he who was to be acceptor refuted in Scotland, adhered to the former interlocutor. See The next case.

Fol. Dic. v. 1. p. 101. Rem. Dec. No 93. p. 184.