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 Hart, Merchant in Warrington, v. James Glassford, Merchant in Glasgow
Date: 21 June 1755 Case No. No 148.
A bill was not presented for acceptance, till after the expiry of the days of grace. Although the drawee had no funds belonging to the drawer, recourse was denied.
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Warnock, merchant in Glasgow, drew a bill upon Smith, merchant in London, bearing value in his hands, and payable forty days after date, to Glassford, or order.
Glassford indorsed this bill to Hart for value: Before the bill became due Warnock died, being at that time, as was contended, insolvent. The bill, after various indorsations, was, on the third day after the day of payment, indorsed at Liverpool to Barclay, merchant in London: Barclay, without delay, demanded payment from Smith; and, on his refusal to pay, took a protest in common form. It appeared, from an affidavit afterwards made by Smith, that he did not refuse payment because the bill was over-due, but because he had not value in his hands.
Hart, the first indorsee, upon intimation of dishonour, retired the bill, and insisted in recourse against Glassford, the first indorser.
Pleaded for Glassford: The bill not having been presented for acceptance till after the expiry of the days of grace, was not duly negotiated; and therefore, by the custom of merchants, and the decisions of this Court, no recourse can be allowed.
Pleaded for Hart: Regular negotiation is required in bills, that the drawer may be thereby warned against trusting the intended acceptor, who has refused to obey his mandate, or because the neglect of the proteur may prejudice the drawer: These reasons apply not to the present case; for Warnock the drawer had no money in the hands of Smith, nor afterwards remitted any to him. Neither could Glassford suffer any damage from the neglect of negotiation; he may still affect the estate of Warnock in common with the other creditors of Warnock; and had the bill been duly negotiated, he could not have had any preference: As, therefore, the neglect of negotiation could not possibly affect the interests of the parties concerned, recourse is still due to the porteur.
‘The Lords found no recourse due.’
For Hart, Sir D. Dalrymple.Alt. Lockbart.
Fol. Dic. v. 3. p. 84. Fac. Col. No 154. p. 229.
