Scottish Court of Session Decisions

Subject_1 BILL OF EXCHANGE.

Ouchterlony
v.
Hunter of Polmood

Date: 18 November 1743
Case No. No. 32.

Recourse. - Notification.

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On the case betwixt George Ouchterlony and Hunter of Polmood, where a great sum was claimed as due to Ouchterlony, for bills paid by him supra protest, drawn by Hunter on Mr. Charles Murray of Stanhope, being the issue of a long course of drawing and redrawing, wherein Hunter's concern was, that he accepted Stanhope's draughts from London, which were always paid by Mr Murdoch at Glasgow, on a letter from Ouchterlony, and who took his bills on Charles Murray for the money; we first found, that Hunter was only interposed dicis causa and as a name, and that he was not bound to Ouchterlony; but, 8th November, 1743, we altered, and found him bound. 2dly, We unanimously repelled the objection of usury. 3dly, As to the point of giving notice, the majority thought there was no difference betwixt a bill simply protested for not acceptance or not payment, and a bill paid supra protest, and thought that the drawer was not bound to prove damage, but that the creditors must prove no damage; and therefore we sustained that objection as to the whole bills, except those bills (I think about L500. or L.600) paid 18th and 23d May 1736. We repelled the defence on Ouchterlony's taking further security from Charles Murray, which gave a forbearance of payment for some months, but still reserved his bills; but where there was writing on the back of the bills cancelled and not legible, we found no recourse on them, and when Mr Murray's money was in Ouchterlony's hands at the payment of any of these bills, sustained that defence also. Upon appeal, the House of Peers in April 1745 found Hunter not bound. (See Dict. No. 141. p. 1567.)