Subject_1 BILL OF EXCHANGE. Subject_2 DIVISION IV.
Possessor's recourse against the Drawer and Indorser.
Subject_3 SECT. II.
Negotiation of Bill.
Alexander Littlejohn v. Walter Allan
Date: 12 December 1746 Case No. No 142.
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Where a bill was not duly negotiated, by the porteur's omitting to present it in due time for acceptance, recourse was refused; notwithstanding the reply, That the drawer suffered no prejudice, the person drawn upon being, to this hour, unquestionably solvent.
That reply is never admitted, but where the drawer has no effects in the hands of the person drawn upon.
Fol. Dic. v. 3. p. 84. Kilkerran, (Bills of Exchange.) No 11. p. 76.*** D. Falconer reports the same case:
Walter Allan, hammerman in Stirling, having furnished some iron-work to the town, an order was made by the Council upon their Treasurer, inscribed upon the foot of his account, to pay it, amounting to L.20: 13s. Scots; and he, 5th March 1743, drew upon the Treasurer on the same paper, to make the payment to Alexander Littlejohn, merchant in Stirling, ‘as above restricted, according to the act of Council above-mentioned.’
Littlejohn being creditor to Allan in this sum, he, 4th April 1743, discharged him of all preceding accounts.
The bill was protested, 15th December 1743, against the Treasurer for non-acceptance; and Littlejohn obtained a decreet of the Magistrates of Stirling against Allan, for the sum, with interest and expence of process; which being suspended, the Lord Ordinary found, ‘That the bill was not duly negotiated, by protesting thereof several months after it was indorsed.’
Pleaded in a reclaiming bill, That the drawer sustained no prejudice, since it could not be pretended that the Treasurer was not solvent.
Answered: The defender is not obliged to enter into this discussion, and any cases wherein the allegeance of no prejudice has been sustained, have been where the drawer had no effects in the intended acceptor's hands.
The Lords adhered.
Act. J. Dundas.Alt. H. Home.Clerk, Forbes.
D. Falconer, v. 1. No 147. p. 185.
