Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, reported by SIR JOHN LAUDER OF FOUNTAINHALL. Subject_2 I sat in the Outer-House this week.
Count Leslie of Balquhain v. James Fairholm
Date: 11 December 1702
Click here to view a pdf copy of this documet : PDF Copy
Count Leslie of Balquhain pursues James Fairholm, merchant in Edinburgh, on this ground, That, in September 1669, his son going to France, he caused James Riddoch, his agent, deliver to the said James £1920 Scots, for which he got a bill of exchange, from the said James, for the like sum of 1920 livres on Mr Foulis at Paris, payable to one Mr Robert Scot there, for his son's use; and having presented it to Foulis, he refusing to accept the bill, they protested against him, and now recur against James Fairholm, the drawer;
Who alleged,—You are excluded from any recourse against me, and that by your own fault, in so far as the bill having come to your hands in due time, and you, not being hindered by any just impediment, neglected to present it by the space of two months to Mr Foulis, and he failing in his credit medio tempore, you have none to blame but yourself, that did not duly present it, by which you have both lost the money to me and to yourself; and the possessors of bills are obliged to do diligence thereon, by the nature of the thing and the mercatorian law, with the very first conveniency.
Answered,—Whatever diligence may be required in presenting bills at usance, yet the same takes no place in bills on days sight, which the possessor may keep up as long as he pleases, though it were for a year, till his conveniency call for the money, seeing he relies on the drawer's faith and credit; and here the Count's son needed not the money these two months, till he came to Paris, having gone by the way of London, and staid there some weeks; and there is no determinate time in law within which the creditor is obliged to present the bill, except that general one of conveniency, which may be very well interpreted of the creditor's conveniency, and not the drawer's.
Replied,—The distinction of bills at usance and on days, as to this point, is chimerical and imaginary; for a bill is either a mandate or an emption vendition: if the first, then it implies an obligation of diligence, being mandatum utriusque causa, that the subject perish to neither; if the second, then periculum est emp-toris, et, ubi dies non ponitur, prcesenti die debetur. And it ought to be presented with the first conveniency, that is, as soon as it arrives at his hand, with the due latitude of a post or two; and so does lex mercatoria determine, cap. 6. p. 272 et 276; and Marius on Bills of Exchange, p. 12 et 15; Scarlet, p. 59; and Molloy, De Jure Maritimo, p. 276; and Voet. ad tit. De Nautico Fcenore, sec. 5 et 7; Stair's Institute, p. 106; and 7th February 1681, Ewing against Burnet.
Duplied,—All thir holds only in bills drawn at usance, which is not the present case; and that, in June 1676, Wallace against Simpson, though a bill was kept up four months, yet the drawer was found liable.
The Lords thought this a general point, and deserved to be well considered, seeing merchants differed thereon; therefore they, before answer, allowed trial to be taken how soon the bill came to Mr Robert Scot's hands at Paris, why he kept it up, and what condition Foulis was then in, and when he broke, and if they would have got their money if they had presented it on its first arrival; to see if there was any culpable negligence in the creditor of the bill.
