Subject_1 BILL OF EXCHANGE. Subject_2 DIVISION IV.
Possessor's recourse against the Drawer and Indorser.
Subject_3 SECT. II.
Negotiation of Bill.
Flower v. Pringle
Date: 18 December 1729 Case No. No 136.
Porteurs are bound to strict diligence. The least failure throws the hazard upon them. It is sufficient, in defence against recourse, for the drawer to say, that he might possibly have recovered from the acceptor.
Click here to view a pdf copy of this documet : PDF Copy
Edward Flower and Son, merchants in London, pursued Robert Pringle, merchant in Edinburgh, in an action of recourse, upon a bill of L. 93: 7s. drawn by Pringle when at Bourdeaux, upon James Scot in Dalkeith, in favour of Flower and Son. It had been accepted, and protested for not payment.
The bill, had been payable at three usances. An usance is 30 days; consequently, counting from the date, it had become due on 10th and 13th June; but had not been protested till 15th June.
Besides this error in the negotiation, it was alleged, That the protest had not been intimated to the drawer till many years after, when Scot had become bankrupt: That the possessor of the bill had voluntarily prorogated the term of payment to the acceptor, by drawing a new bill on him for a larger sum (including the bill in question, after it had been protested), payable at 30 days fight, by which he had innovated the debt, and renounced recourse against the drawer: That the new bill had been paid to an extent exceeding the sum in the bill, drawn by Pringle; which payment ought to be imputed, in the first place, in extinction of Pringle's bill: And lastly, That when Scot had been prosecuted upon the new bill, and had procured a bond of presentation, the possessor of the bill had voluntarily discharged that security.
It was answered, That it was immaterial whether the bill was duly protested and intimated or not, unless the drawer would undertake to prove, that had the protest been duly taken, and he timeously informed of it, he might have recovered his payment: That the taking a new bill was no innovation of the debt, but only a corroborative security for it; the pursuers retaining in their hands the bill drawn by the defender; so that he could qualify no damage by the transaction; as the moment the bill drawn by him was protested, he could have proceeded against the acceptor, without regard to the new bill: That the partial payment made upon the new bill, would be imputed proportionably towards extinction of the pursuer's debt, and the other debts included in it, and ought not, in justice, to be held to extinguish any debt exclusively: That, although the cautioner in the bond of presentation was relieved, the principal remained bound.
Upon report of Lord Grange—The Lords sustained the defence, ‘That the pursuers did not duly intimate to the defender, the non-payment and protesting of the defender's draught on Scot; and also sustained the other defence, that the pursuer had drawn a new bill for a greater sum, wherein it was acknowledged the smaller sum was included, and had prorogated the term for paying the said last bill, beyond the term at which the first bill was payable; and found he had thereby loft his action of recourse; therefore assoilzied the defender.’
Lord Ordinary, Grange.Act. Pet. Wedderburn.Alt. Jas. Fergusson.
Fol. Dic. v. 1. p. 101. Session Papers in Advocates' Library
