Subject_1 BILL OF EXCHANGE. Subject_2 DIVISION IV.
Possessor's recourse against the Drawer and Indorser.
Subject_3 SECT. II.
Negotiation of Bill.
Sir John Swinton, v. The Lady Craigmillar
Date: 28 June 1706 Case No. No 127.
Recourse still competent upon a bill, though not duly negotiated; if the person drawn upon, continue responsible.
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In the action at the instance of Sir John Swinton, against the old Lady Craigmillar, for payment of a bill drawn by her upon Sir Alexander Gilmore of Craigmillar her son, payable to John Inglis, writer to the signet, as the pursuer's trustee, for value resting to the pursuer by the Laird of Langton, the drawer's brother; in regard the bill was refused by Sir Alexander, and protested for not acceptance,
Alleged for the defender: That she having drawn the bill for supporting her brother's credit, upon his promise to relieve her, the possessor of the bill was bound to negotiate the same, not only by a protest for not acceptance, but also by intimation thereof to her the drawer, that she might timeously have operated her relief against Langtoun, in his lifetime; which she could effectually have done, he having, till the day of his death, betwixt two and three thousand merks yearly, paid him out of the estate. And the want of advertisement from the creditor, of the bill's being dishonoured, made her slip the opportunity.
Answered for the pursuer:—Though foreign bills favore commercii, in respect of the great distance of places, must be duly negotiated, by certiorating the drawer of the not acceptance thereof, lest he might lose his effects in the hands of the person drawn upon, by his breaking before the drawer get notice of the protesting of his bill for not acceptance; no body can require this in the case of inland bills, where the foresaid reason takes no place; and we have no statute to determine us therein; for the act 1696, provides only the same execution upon inland bills, as, by the act 1681, is allowed to pass upon foreign bills. In the which act, no time is prefixed to the negotiating bills, or intimation to drawers in case of not acceptance. 2do, Though the bill in controversy were a foreign bill, the neglect to advise the drawer concerning its being protested for not acceptance, would not cut off the possessor from his recourse against her, unless the person drawn upon were broken with her effects, which she did not recover out of his hands, for want of intelligence that her bill was refused; which cannot be alleged, since he is abundantly solvent and responal. 3tio, Langton being none of the parties concerned in the bill, the possessor, who got it for an onerous cause, was not obliged, in the negotiating thereof, to regard the drawer's business with her brother, or what moved her to draw the bill upon his account. But the truth is, this bill has been given either for debt due by her to him, or else freely to save his credit and person at the time; for he was notourly insolvent.
The Lords repelled the defence.
Fol. Dic. v. 1. p. 100. Forbes, p. 113.
*** See Yule against Richardson, Fount. v. 2. p. 64. voce Summar Diligence.
