Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat this week in the Outer-House, and so the observe are fewer.
Henderson v. Muirison
Date: 25 July 1701
Click here to view a pdf copy of this documet : PDF Copy
Whitehill reported Henderson against Muirison, merchant in Aberdeen. The case was a bill of exchange accepted, but protested for not-payment; whereupon the creditor in the bill recurs against the drawer; who alleged, no action could be sustained against him, because the protesting for not paying was not debito tempore intimated to him, whereby he might have had recourse against the drawer, but that he had kept it up a year; and, if this were allowed, then why not two or three years? And that both Marius and Scarlet, who write on bills of exchange, are positive that protests for not-payment ought to be advised within two or three posts thereafter, that the drawer may take such measures as may be necessary for his relief, otherwise he may be exposed to great inconveniences.
Answered,—The certioration holds only in foreign bills of exchange; whereas this is an inland bill, where parties may know one another's condition without advertisement; and that our law prescribed no definite time for inland commerce.
To which opinion the Lords inclined: But, in regard it was alleged the debtor was broken before the term of payment of the bill and the protest, therefore they ordained that matter of fact to be tried; for, if that was true, there was no necessity of advertising the drawer, who could not have then reached his effects. There would also arise some difficulty in the way of certioration: For if they dwell not in one place, where it may be done by way of instrument before a notary and witnesses, how shall it be proven that you sent him a letter, and that he accordingly received, unless you acquiesce in taking his oath thereupon, if he got any letter of advice giving him that account?
