Subject_1 BILL OF EXCHANGE. Subject_2 DIVISION IV.
Possessor's recourse against the Drawer and Indorser.
Subject_3 SECT. II.
Negotiation of Bill.
Claud Johnston, Merchant in Edinburgh v. James Murray, Merchant in Leith
Date: 1 February 1715 Case No. No 132.
An acceptor, instead of payment, gave a draught, and received his own acceptance. This found to afford no defence against recourse upon him, the draught not having been paid.
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William Bouden, merchant in London, being creditor to James Murray, draws a bill upon him, payable to himself, or order, which is accepted by Murray; and Bouden remits the bill to his correspondent in Edinburgh, Andrew Edgar, to receive the contents. Instead of paying to Edgar, Murray draws another bill on George Johnston, merchant in London, in these terms “At Ten days sight of this my bill of exchange, pay to Mr William Bouden, or order, Fifty-seven pounds Ten shillings Sterling, and retire my bill for the said sum, which fell due in September last; place it to my account, without further advice.” This bill is dated l0th November 1709; upon the 19th of the said month the bill is accepted by Johnston, and that night Bouden acquaints his correspondent Edgar of its being accepted, and orders his delivery up of the former bill to Murray: Which was accordingly done by Edgar without any new value, but only that George Johnston had accepted the second bill. Fourteen days after acceptance, Bouden protests Johnston's bill for not payment, and that night advises Murray thereof, and tells him, that by the next post he is to fend the bill and protest to Mr Edgar, in order to get payment: And accordingly, by the post following, writes to Murray that he had sent them, and desires him to pay in the contents to Edgar. Thereafter Bouden breaks, and Claud Johnston, to whom the bill was indorsed, pursues Murray for payment.
Answered for the defender, 1mo, That the bill was not duly negotiated; for being payable ten days after fight, it ought to have been protested immediately after falling due, whereas it was not protested till the fourth day thereafter. 2do, Though it had been duly protested, yet Bouden could have no recourse: because, supposing he had been duly advised of the protest, yet the protested bill was not proffered timeously to him, which ought to have been done, that he might thereon have operated his relief against Johnston. 3tio, Esto that all these necessary forms had been used, yet that he could not be liable in recourse, because Bouden had acquiesced in the bill, so soon as accepted by Johnston, in solutum: And, in consequence thereof, had ordered the delivery up of the first bill, whereby he had for ever debarred himself from any recourse against the defender; and the defender, in belief that he was no more liable, had given credit to Johnston for that sum, and the first bill being in the defender's hands discharged, was all one as if he had got a discharge of both.
Replied for the pursuer to the 1st, That the bill was protested in the precise form prescribed by cap. 17. 9th William III. which regulates the manner of diligence on bills; and whereby no protest can be till after three days from the time of the bill's falling due; which was duly observed here, it being the 29th of November, and protested 3d December. To the 2d, That no law requires the creditor to offer to the drawer the protested bill, it being sufficient to give timeous advice: Which being done in this case, it was Murray's part to call for the bill and pay it, since he was already certiorate; and if he needed the protested bill, he ought to have first paid Bouden or his correspondent, and then taken it up: But Bouden was not bound to seek after him with the bill. To the 3d, That certainly the defender was liable to Bouden, not only to procure the bill accepted, but paid; for all the transaction was, that Bouden, in place of a bill, whereof he was to receive payment at Edinburgh from Murray, got a bill of like value payable at London, which certainly the drawer was as much obliged to see implemented at London, as if money had been actually paid for the second bill, because on account of the second he got up the first.
The Lords found, that the retiring or delivery up to Murray of his own accepted bill, did not afford him any defence against Bouden or his assignee, as to the recourse upon him as drawer of the bill on George Johnston; and that not withstanding that the said Johnston had debited him therewith in his accounts; and found the bill accepted by the said Johnston duly negotiated by Bouden.
Act. Boswell.Alt. Graham.Clerk, Roberton.
Bruce, No 48. p. 61.
