Scottish Court of Session Decisions

On the 14th September, 1826, the following bill was accepted at Leith by the suspender, Moffat, and one Nicholl, to the charger, Marshall, who resided in Glasgow:—

“Leith, 14th September, 1826. £400.

“ At sight, pay to me, on my order, within your house, 42, Yardheads, the sum of four hundred pounds sterling, for value received, in cash.

“ David Marshall.

“ Jas. Nicholl.

“ Willm. Moffat.”

To James Nicholl, coal-merchant, Leith, and William Moffat, wright and undertaker there.

The bill remained in Marshall's possession (payments of interest being made in the interim), and on 10th May, 1836, was presented for payment to Moffat. It was thereafter protested for non-payment, and a charge given upon it at Marshall's instance. Of this charge Moffat brought a suspension, and pleaded,—

1. The bill has not been duly negotiated. In the case of a bill payable at sight, the acceptance (as in the present case), bearing no date, the term of payment is held to be of the date of the bill; and in order to found summary diligence, the bill ought to be protested for non-payment, and the protest registered within six months after the falling due thereof.

2. The bill is prescribed; the sexennial prescription having commenced to run from the date of the bill, when the sum therein became exigible.

It was answered by Marshall;—

1. The bill has not fallen from any want of due negotiation, it being competent for the charger to retain the bill in his possession without pre- senting it for payment in the manner he did, more especially as the bill was evidently made payable at sight, for the purpose of rendering it a permanent document.

2. Nor has it fallen by the sexennial prescription, the prescriptive period not commencing to run from the date of the bill, but only from the date of presenting, at which time the bill alone becomes exigible.

The Lord Ordinary pronounced the following interlocutor, adding the subjoined note: ^*—“Finds, 1mo, That it is sufficiently instructed by the suspender's letter to the charger (recovered from the charger in this process), transmitting or returning to him, at Glasgow, the bill now charged on, that the said bill was accepted at Leith, by the said suspender, and James Nicholl, on the 14th day of September, 1826, being the day on which the said letter bears to have been written, and also the day on which the bill is dated, and on which the money was received by the acceptors. Finds, 2do, That the bill being drawn payable at sight, fell due, and was truly exigible immediately on its being so accepted, or on the said 14th day of September, 1826; when it must be held to have been presented to, and seen by, the acceptors, both for acceptance and payment; and that it did not require any second or subsequent presentment to fix its proper time of payment, or the commencement of its legal currency, under the Act 1772, c. 12; and, therefore, and in respect, that it is admitted that it was not protested for non-payment, in terms of the Act 1696, c. 36, for more than six months after it so fell due, and that no action or diligence was raised upon it, in terms of the said Act 1772, c. 12, within the space of six years after it so became exigible, suspends the letters, and charge simpliciter, and decerns. Finds the suspender entitled to expenses.”

_________________ Footnote _________________

^* “Besides the case of Stephenson ¹ referred to in the bill of suspension (which was that of a bill payable on demand), there are two earlier cases of bills payable at sight, or three days after sight, which give great countenance to the argument of the suspender. These are the cases of Tarras, 22d January, 1740 (Mor 475), and Mercers, 22d November, 1748 (Mor 477.)

“The only difficulty the Lord Ordinary had was from there being a specific place of payment appointed in the body of the bill, viz.—‘the dwelling-house of the acceptors, 42, Yardbeads, Leith,’ which might seem to make it necessary to show that it had actually been presented, and seen by them, at that place. It will be observed, however, that the acceptance (which the Lord Ordinary thinks implies presentment and sight), is dated at Leith (Glasgow being the residence of the drawer), as well as the letter transmitting it to Glasgow, and the Lord Ordinary is of opinion, that a document of this kind, dated generally from the town of the party's residence, will be held to have been made at his dwelling-house. The admitted payment of interest from 1826 downwards, and other circumstances, seem to leave no doubt, that both the parties dealt with the bill as past due from the day of its date. The debt may be still recoverable, therefore, by ordinary action. But the bill and protest are conceived to be quite incapable of supporting the summary diligence now found to be incompetent.”

¹ June 16, 1807 (F.C.)

Marshall reclaimed.