Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION, collected by JAMES BURNETT, LORD MONBODDO.

Ouchterlony
v.
Hunter

Date: 9 November 1743

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[Kilk., No. 9, Bill of Exchange; Elch., No. 32, ibid.]

It was the opinion of the Lords, that there was no difference betwixt a payer supra protest and porteur protesting for not-payment or not-acceptance. As to the third point, some were of opinion that the porteur did not lose his recourse, unless the drawer could qualify some damage by the neglect of due intimation. Others, particularly Lord Elchies, thought that the onus probandi should lie upon the porteur, who ought to show that the drawer had suffered no damage, otherwise to be barred in recourse; but the generality of the Lords seemed inclined to establish a universal rule, by which the porteur, if he neglected to give due notification, lost his recourse in all events. To lay the proof of damage upon the drawer, they thought was hard, and the other proof of no damage they thought impossible; therefore found that Ouchterlony had lost his recourse against Hunter. Actores, Alexander Lockart, Charles Maitland.