Subject_1 BILL OF EXCHANGE. Subject_2 DIVISION II.
The Porteur's Action against the Person upon whom the Bill is Drawn.
Subject_3 SECT. II.
Extraordinary Privileges of Bills.
Andrew Stevenson, v. Messrs Stewart & Lean
Date: 14 November 1764 Case No. No 103.
A bill, of which the drawer and acceptor are both inhabitants of Scotland, if made payable at London, and duly negotiated, gives the same title to all expence and damage, as if the parties had been residing in different countries.
Found duly protested by the practice in England, though the protest was taken only by a clerk, and extended by the notary himself at home.
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Andrew Stevenson, merchant in Glasgow, drew a bill upon Messrs Stewart and Lean, merchants, and residenters in the same place, in the following form:
“Glasgow, 10th August 1762.
Ninety days after date, pay to me, or my order, L. 227: 16: 4, value received from Andrew Stevenson.
To Messrs Stewart and Lean, at Messrs
Moffat and Graham, merchants, London.”
This bill having passed through several indorsees, came at last into the hands of one Hunter, who, upon the 11th of November 1762, being the last day of grace, presented the same for payment at the house of Moffat and Graham which was refused, as they had no funds, at that time, of Stewart and Lean in their hands.
This laid Hunter under the necessity of protesting the bill for exchange and re-exchange, and of returning it upon the last indorsee; and it having come upon Stevenson, the original drawer, he was obliged to pay all the expences attending its dishonour. In consequence of which, he prosecuted the acceptors for indemnification of the damage he had sustained.
The defence pleaded by them against this action, was, 1st, That the bill had never been duly protested at the house of Moffat and Graham; for, in fact, the notary, named in the protest, was not really present when the bill was presented for payment, and the protest taken: And that the bill, as appeared from the protest, was presented to Stewart and Lean, who were not in London; whereas, it ought to have been presented to Moffat and Graham, at whose house the same was payable. 2dly, It was contended, That, though a protest, regularly taken, was a good ground to pursue for exchange and re-exchange, as was sought in the present case; yet this was confined entirely to the case of bills drawn and accepted by persons residing in different countries, but could never be extended to inland bills, such as this, where both parties were inhabitants of Scotland, and where the place of payment only was in a different country.
In answer to the first position, the pursuers brought a proof, that it was the universal practice in London, for the notary not to be present when the bills were presented for payment or acceptance; that the practice there was, to send a clerk to present the bill, who returns with the answer to the notary his master; in consequence of which, the notary makes out a protest, as if he himself had been actually present, and inserts the names of two witnesses as being present at the protest; which is nothing more than mere form; for, that a well employed notary in London, seldom or never presents bills himself, but always extends protests in this form. As to the bill's being presented to Messrs Stewart and Lean, who were not in London at the time, it was of no consequence, as it was only a mistake of the clerk, who imagined, that Moffat and Graham, at whose house the bill was payable, were these gentlemen; and there was still convincing proof, that the bill had been actually presented, and payment refused.
To the second defence, it was answered, That exchange and re-exchange were always competent to the drawer upon the dishonour of his bill, when the money was conveyed from one place to another, without the distinction of its being an inland bill or not, or whether the parties resided in the same or different countries. That, when an inhabitant of Scotland accepts a bill payable in London, it was just the same as if he himself had resided there: That exchange, in such a case, was due, and the dishonour of such a bill was attended with the same expence, as if the persons concerned were inhabitants of different countries.
‘The Lords found the bill duly negotiated, and the drawer entitled to exchange, interest, commission, and expences upon the bill.’
Act. Montgomery.Alt. M'Queen.
Fol. Dic. v. 3. p. 81. Fac. Col. No 146. p. 348.
