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.
Hugh Kennedy v. George Hutchison
Date: 8 July 1664 Case No. No 86.
The acceptor of a bill died soon after acceptance, before any mora was incurred. No exchange or re-exchange found due, there being no voluntary fault.
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Hugh Kennedy as assignee, by Sir Mark Ker, to a bill of exchange, which was drawn by George Hutchison, upon William Shaw at London, payable to Sir Mark, for like value received from him, did obtain decreet against George Hutchison and one Shaw, as intromitters with the goods of William Shaw, both for the bill itself, and for the exchange, and re-exchange; the bill being protested for not payment. This decreet being suspended, it was alleged, That there could be no exchange, or re-exchange, nor any thing paid for the bill; because the bill was not lawfully protested; but being accepted by Shaw in London, he shortly after died; and it was protested at his house where he died, before none of his relations, having neither wife nor children. The charger answered, That he took instruments on the defence, and alleged, that he needed not to prove the passive title. Secondly, That he had done all that was requisite, having protested at the dwelling-house where Shaw resided.
The Lords found, That in this case, death interveening, which was an accident, there could be no exchange nor re-exchange, because this was no voluntary failure, nor fault; but found that the charger, as assignee, might either take himself for the single value against the person drawer of the bill, or to his successors on whom it was drawn.
