Subject_1 BILL OF EXCHANGE. Subject_2 DIVISION IV.
Possessor's recourse against the Drawer and Indorser.
Subject_3 SECT. II.
Negotiation of Bill.
Coutts and Company v. Nisbet
Date: 18 December 1760 Case No. No 153.
Recourse sustained upon a promissory note, where the dishonour was duly notified, although the note itself and protest were not immediately returned.
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David Leitch, upon the 27th of April 1758, granted a promissory-note, dated at Glasgow, in the following terms:
“Sixty days after date, I promise to pay to the order of Mr David Nisbet, L. 55 Sterling, at the house of Malcolm Hamilton, and Company, merchants in London, for value received.”
Nisbet indorsed this note to Coutts and Company; they indorsed it to Moses, ironmonger of Birmingham; and he to Messrs Parkingsons, merchants in London.
When the note became due, it was presented for payment at London; and, upon refusal, was duly protested against David Leitch, and all others concerned. It was admitted, that the dishonour was notified in due time to Mr Nisbet. The note and protest being returned, Messrs Coutts brought a process against Mr Nisbet for payment.
Pleaded for the defender, Though the dishonour of the note was properly notified, yet the note itself, and the protest, were not transmitted to Scotland, or presented to the defender for payment, till a, month after the date of the protest: That in all such cases, not only must the dishonour of the bill be timeously intimated to the indorser, but the bill itself must be immediately transmitted, and payment demanded; and that this is the opinion of merchants who have been consulted upon the question: That in the present case, Leitch was now become bankrupt; and, if the note had been timeously transmitted, payment might have been recovered from him.
Pleaded for the pursuer, As this note was payable in England, and passed by indorsation through several hands in that country, it must be regulated by the law of England; and by the statute 9no & 10mo Guliel. cap. 17. joined with the act 3d and 4th of Queen Anne, cap. 9. it is sufficient, that due notice be given of the dishonour within fourteen days. Neither of these acts require, that the note itself, or protest, should be transmitted within any limited time. Besides, it is impossible, that the holder of the note can transmit the only document, he has for the debt, until he has received payment.
The Lords found the defenders liable in payment of the contents of the note, with expences.
Act. Miller.Alt. Lockhart.Clerk, Home.
Fol. Dic. v. 3. p. 88. Fac. Col. No 262. p. 488.
