Scottish Court of Session Decisions

Subject_1 DECISIONS of the LORDS OF COUNCIL AND SESSION. Collected By JAMES BURNETT, LORD MONOBODDO.
Subject_2 COMPLAINT FROM STIRLINGSHIRE.

Tod
v.
-

Date: 15 November 1758

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[Fac. Coll. II. No. 123.]

In this case it was decided unanimously, that a bill must be protested for not payment upon the third day of grace at farthest; and if it was a Sunday, or other holiday, upon the second: and a protest upon the fourth day signified nothing in a question concerning the recourse. This was finally decided in the case of Mitchell of Colpney, in the year 1751, after much variation of judgment among their Lordships, and is now considered as established law.

Another question here was, Whether the acceptor of the bill, stopping payment two days before, was any reason for not protesting the bill in due time. It was said that the protesting, after the acceptor had stopped payment, could be of no use to the creditor, because the debtor having taken out a statute of bankruptcy, his whole effects were, from the time of his stopping payment, vested in the trustees under the commission. But the Lords were of opinion that the strict forms of negotiating bills were not to be dispensed with on any pretence of their being useless for operating payment. Dissent. tantum Kaimes.

Lord Auchinleck said, that, as that whole matter of negotiation and recourse was contrary to the common rules of law, which required only that the cedent of the debt should warrant debitum subesse, and was entirely governed by custom, that custom he thought ought to be religiously adhered to.