Subject_1 BILL OF EXCHANGE. Subject_2 DIVISION IV.
Possessor's recourse against the Drawer and Indorser.
Subject_3 SECT. II.
Negotiation of Bill.
John Adam, Merchant in Glasgow, v. Thomas Dick, Merchant in Douglas
Date: 24 February 1737 Case No. No 139.
A bill was not protested for several days after the term of payment, and the dishonour was not duly notified. The recourse found to be lost, and the drawer not obliged to show that the acceptor had become insolvent in the interim.
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The said Thomas Dick indorsed to John Adam a bill, drawn by Dick upon, and accepted by William Alexander in Dyke, payable at Whitsunday 1735. On the second of June thereafter, Adam protested the bill against both drawer and acceptor, at the drawer's house in Douglas, where it was made payable; and, upon the 8th, he charged Alexander with horning, who having soon thereafter failed, Adam, in December following, brought an action against Dick, for recourse, before the Sheriff of Lanark, where he obtained a decreet, which Dick suspended, upon the following reasons:
1mo, Because diligence was not done in due time. 2do, Alexander, the acceptor, offered the charger payment at Glasgow, upon the 24th of May, nine days after the bill became due; therefore no recourse could lie, as it was the charger's fault that he had not received payment.
Answered to the first: That the not protesting till the 2d of June cannot bar recourse, unless the suspender would allege, That the acceptor had suffered an alteration in his circumstances during that time. To the second, The offer of payment at Glasgow was altogether a sham, seeing it was made when the acceptor knew the bill was sent to Douglas to be protested, and so could not be delivered up: however, the charger offered to take the money, and find security to deliver up the bill as soon as it came to hand.
Replied: The acceptor having broke soon after the protest, the damage thence arising must fall upon the charger, who not only neglected to negotiate the bill, when it became due, but likewise omitted to notify the dishonour thereof to the suspender, until the commencement of this process. And, with regard to the allegeance, That the charger was not in fault anent the offer of payment, it was answered, That there is no evidence the bill was really sent to Douglas upon the 24th of May; but, supposing that to have been the fact, the charger should have got it back quamprimum, and presented the same to the acceptor for payment, whereby it would have appeared, whether the offer was simulate or real; but, instead of that, he rested satisfied with the protest, as if the acceptor had been bound to attend in the town of Douglas ay and while a protest was taken.
Duplied for the charger: The protesting the bill at the drawer's house was the most formal notification that possibly could be given to him of the dishonour thereof; and, although that was not done until seventeen days after the term of payment, still that omission cannot free the suspender from being liable in recourse, unless the acceptor had become insolvent in the interim, conform to the decision, 25th July 1699, Yule against, Richardson, Fount, v. 2. p. 64. voce Summar Diligence. And, as to the, offer of payment, if the same had been made at Douglas, where the bill was payable, possibly the charger, in such a case, might have been considered as in mora for not accepting it; but, as that ofter was made in Glasgow, at a time when the bill neither was, nor could be presumed to have been in the charger's hand, no regard ought to be paid thereto.
The Lords found no recourse now competent against the drawer, in respect the bill was not duly negotiate; and therefore suspended the letters.
