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. I.
Of Bills not Accepted.
Alexander Naughton, Factor in Rotterdam, v. Andrew Ritchie, Merchant in Aberdeen
Date: 10 December 1712 Case No. No 80.
One of two co-partners accepted only for his own part. He ought to have accepted simply, and was found liable for the whole.
Click here to view a pdf copy of this documet : PDF Copy
Andrew Ritchie, and Alexander Orem, Bailie in Aberdeen, being in co-partnery, and having commissioned Alexander Naughton to send them goods in company; for which they desired him, by their missive letters, to draw bills, and they would honour the same. He drew upon them a bill of L. 50 Sterling, payable to John Gordon, as per advice; which Bailie Orem accepted in the ordinary manner; but Ritchie adjected to his acceptance these words, For my own half. In a process for payment of this bill, at the instance of Provost Allardice, against Andrew Ritchie——The Lords found, That Ritchie (who produced no letters of advice) ought to have simply accepted the bill; and, therefore, is liable for the whole sum therein. See No 70. p. 1478.
Fol. Dic. v. 1. p. 98. Forbes, p. 642.*** The same case is reported by Dalrymple:
Naughton draws a bill of L. 50 Sterling upon Orem and Ritchie, which Orem accepts simply, and Ritchie accepts for his half; Orem being insolvent, he insists against Ritchie for the whole sum in the bill; upon these reasons: 1mo, The bill being drawn upon Orem and him, in the course of exchange, it was understood, that they should both be bound in solidum; and, if Ritchie had not been willing to accept, he might have suffered the bill to be protested; but seeing he did at all accept, he became simply bound; and there was no regard to be had to the adjected quality, which was unwarrantable. 2do, Orem and he were in co-partnery, and wrote joint letters; whereof two were produced to Naughton, desiring him to afford them credit for the value of a cargo of wine, to be put aboard a ship then lying at Bourdeaux; and promising to honour his bills; and the bill bears per advice; and the letter of advice not being produced, the draught is presumed to be for re-imbursing his advance on the foresaid commission.
It was answered: The acceptor of a bill, with a quality, is only bound in the terms of his acceptance; and the presenter of a bill, if not willing to admit of the quality, may protest for not acceptance; but having made use of the bill, with a qualified acceptance, ought to hold himself content with the terms thereof; and the defender denied the co-partnery, or that he was debtor to the drawer,
It was replied: The letters proved the co-partnery, and obliged both to honour Naughton's bills. 2do, The qualified acceptance was occasioned by the bills being sent to Ritchie in the country; but that cannot prejudge the possessor; because, if he had not accepted at all, he would have been liable upon the letters produced in solidum; and his acceptance for the one half can put him in no better condition for the other half, than if he had not accepted at all.
‘The Lords found, that he ought to have accepted simply, and that he was liable in solidum.’
