A bill of exchange bears annualrent against the accepter, from the term of payment, although not protested for not payment.
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A Question occurred betwixt these parties, If a foreign bill of exchange bears annualrent against the accepter, without being protested for not-payment ?
And it was argued by Lochton the defender, for the necessity of protest, That though the act 20. Parl. 1681, was general, “That the sums contained in all bills of exchange bear annualrent, in case of not acceptance, from the date thereof; and in case of acceptance, and not payment, from the day of their falling due:” Yet from the whole tenor of the act, it appeared that the same was only to be understood of bills protested. The first clause, which relates to execution, was expressly so, “That bills protested, &c. shall be registrable within six months to afford summar execution:” The second clause, touching annualrent, was a further effect of the bill's being protested and registered within the six months, “That the same should bear annualrent from the date, if not accepted; and from the falling due, in case of acceptance and not payment:” And so the third clause, which is introduced like the second, with an ‘And further,’ is obviously to be understood only of protested bills, viz. “That it should be leisome to pursue for the exchange, if not contained in the bill, with re-exchange, damage, interest, &c. before the ordinary judge:” None of which were ever found due without protest.—It was argued 2do, That the said clause statuting, “That all bills should bear annualrent, in case of not acceptance, from the date; and in case of acceptance, and not payment, from the day of their falling due,” could not possibly be understood in the first of these two cases, of any other than protested bills; since without a protest for not acceptance, there is no recourse competent against a drawer.
On the other hand, it was argued, That the clause was general, reaching all bills, protested or not protested. Before that act, while the practice of other nations was our rule in the subject of foreign bills, it was controverted whether annualrent was due upon them or not; which the Legislature intending to determine, did in general terms statute, “That all bills (seiz. all foreign bills, these being the only subject matter of the act) should bear annualrent, in case of not acceptance, from the date; and in case of acceptance, and not payment, from their falling due:” And the clause being immediately subjoined after the restricted case of bills duly protested and registered, to afford summar execution, statuting, not that such bills, but that all bills, &c. should bear annualrent, shewed plainly that both cases were under the Legislature's view; that they were perfectly distinct, and the one case not to be limited or regulated by the other.—Answered to the second, For the most part indeed, bills bear not interest against the drawer, unless protested for not acceptance: But the reason is, that the principal is not due without a protest; and it must be noticed, that the protest is no way necessary to make annualrent run, but to make the principal due. To clear this, let a case be put, where recourse is competent against the drawer, without protest, for not acceptance; in that case it would reach the annualrent as well as the principal sum: As for example, If there is a draught upon a person not the drawer's debitor, though there be no protest, the party who paid the money will recover it from the drawer, both principal and interest; and therefore the first case in the clause is to be understood of all bills whatever, protested or not, as well as the second.
“The Lords found, That by the act 20. Parl. 1681, the sums contained in all bills of exchange accepted, though not protested, bear annualrent from the day of their falling due.”
Fol. Dic. v. 1. p. 36. Rem. Dec. v. 1. No 15. p. 30.
