Scottish Court of Session Decisions

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 Reynolds, Merchant in London,
v.
James Syme, and John Wemyss and Son, Merchants in Dundee

Date: 4 February 1774
Case No. No 160.

A bill drawn from Scotland upon England, is accounted a foreign bill, as to the time limited for notification of its dishonour.

Click here to view a pdf copy of this documet : PDF Copy

The defender, James Syme of Dundee, on the 20th day of January 1772, drew a bill on Alexander M'Roberts, merchants in London, in favour of the other defenders, Wemyss and Son, also of Dundee, for L. 100 Sterling, payable two months after date. This bill being accepted, was indorsed by Wemyss and Son, and sent by them to John Auld merchant in Glasgow, who transmitted the same as cash to John Reynolds of London.

M'Roberts the acceptor, having become bankrupt, the bill was, of date the 23d March 1772, duly protested by Reynolds, who, on the fifth day thereafter, viz. on 28th March 1772, returned the bill on John Wemyss and Son, the indorsers, acquainting them of the dishonour.

Reynolds being refused payment, brought an action for recourse against the drawer and indorsers. The plea stated for the defenders was, that no recourse lay against them, as the bill was a foreign bill, and no notice was sent of the dishonour till the fifth post thereafter: That bills of exchange, drawn in Scotland, and payable in England, or drawn in England, and payable in Scotland, are, and always have been held, both in law and in business, to be foreign bills, subject to their rules, and entitled to their privileges, no less than those drawn between Scotland, and any country lying beyond the seas, of belonging to another supreme power: That inland bills are opposed to foreign ones; and, as the former are universally described to be those “which are both drawn and payable in Scotland,” the latter are no less generally understood to mean, “such as are drawn in Scotland, and payable in another country; or drawn in another country, and payable in Scotland:” Which definitions are agreeable to the express words of statutes, to the unanimous opinions of lawyers, and to the established practice, as well as ideas of merchants, act 1681, c. 20.; 1696, c. 36.; the English statute, 9no et romo, Will. III. c. 17.; Sir George M'Kenzie's Observ. on the statute 1681; Erskine's Inst. b. 3. tit. 2. § 35.—Pr. b. 3. tit.*. § 17.; Blackstone, b. 2. c. 30.; and Cuningham's Law of Bills of Exchange, § 4.

The Court pronounced the following judgment: ‘In respect that, by the practice of merchants, not denied by the pursuer, the dishonour of bills drawn from Scotland upon England, is in use to be notified within three posts after the dishonour; therefore find, That the dishonour of the bill in question was not duly notified, and that no recourse lies thereupon; sustain the defences; assoilzie the defenders; and decern.’

Act. W. Nairn. Alt. Geo. Wallace. Clerk, Tait. Fol. Dic. v. 3. p. 85. Fac. Col. No 105. p. 280.

* The reference is exactly copied from the original report. The Session Papers are not in the Advocates' Library.