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Scottish Court of Session Decisions >>
James Cowan v William Key. [1795] Mor 1621 (20 June 1795)
URL: http://www.bailii.org/scot/cases/ScotCS/1795/Mor0401621-180.html Cite as:
[1795] Mor 1621
Subject_1 BILL OF EXCHANGE. Subject_2 DIVISION IV.
Possessor's recourse against the Drawer and Indorser.
Subject_3 SECT. II.
Negotiation of Bill.
James Cowan v. William Key
Date: 20 June 1795 Case No. No 180.
When a bill, payable a certain number of days after date, is protected for non-acceptance, the holder may raise summary diligence against the drawer for recourse, before the term of payment.
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William Key, for value received, drew a bill in favour of Williamson and Haig, for L. 50 Sterling, on Nixon, Hunter, and Nixon of London, dated 10th March 1795, and payable 90 days after date.
The bill was afterwards indorsed by Williamson and Haig to Cowan and White, by them to James Cowan, and by him to Smith, Payne, and Smith, who, on the 28th April, presented it for acceptance, which being refused, they protested it against Nixon, Hunter, and Nixon, for non-acceptance, and against the drawer and indorsers, for exchange, re-exchange, costs, &c. and immediately returned it, with the protest, to James Cowan, who, on the 23d May, gave Key, the drawer, a charge of horning upon it for payment.
A bill of suspension, presented for Key, having been refused, he, in a reclaiming petition,
Pleaded: Although the drawee should refuse to accept, the holder of the bill cannot have recourse against the drawer till it becomes due. It is not necessary, when a bill is made payable so many days after date, that it should be presented for acceptance; it is sufficient to present it for payment on the last day of grace; and, if not honoured then, to protest it for non-acceptance and non-payment, 28th June 1749, Jamieson against Gillespie, No 146. p. 1579. But if a protest, for non-acceptance, vested in the holder a right of such importance as that of immediate recourse against the drawer and indorsers, it would in all cases have been made indispensable.
Besides, when an obligation is made prestable on a particular day, as in the present case, the day is held to be adjected in favour of the debtor, and the creditor cannot demand performance till it arrive.
Answered: The drawer of a bill undertakes that it shall be accepted whenever it is presented for that purpose; Bayley on Bills of Exchange, p. 11. If this, therefore, is refused, there is a failure in his obligation which subjects him to immediate recourse. Accordingly, where acceptance is refused, summary diligence, before the day of payment, is declared competent against the drawer and former indorsers; 1681, c. 20; 1772, c. 72. See also Forbes on Bills of Exchange, p. 177, and 178. The law of England, also, in this case, gives immediate recourse to the holder of the bill, Bayley, p. 42.; Lovelass on Bills of Exchange, p. 67.
The Lords were clearly of opinion, that the charge was authorised by the statutes 1681 and 1772, and unanimously ‘adhered.’
Lord Ordinary, Methven.For the Charger, Cullen.Alt. W. Robertson.Clerk, Hume.
Fol. Dic. v. 3. p. 84. Fac. Col. No 179. p. 425.
*** For cases subsequent to the date of the above, on the subject of this section, see Appendix.
