Subject_1 BILL OF EXCHANGE. Subject_2 DIVISION IV.
Possessor's recourse against the Drawer and Indorser.
Subject_3 SECT. II.
Negotiation of Bill.
James Coulter v. Robert Martin
Date: 21 June 1775 Case No. No 162.
Evidence of due notification of the dishonour having been given, so as to subject the drawer in recourse, was inferred from his own posterior deed, importing an acknowledgement of his being debtor in the sum, among others, to the holder.
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A bill was drawn by Robert Martin, 20th December 1764, upon, and accepted by George Kellar, for L. 194:17:6, payable to the drawer four months after date. It was indorsed for value by Martin to Thomas Johnston, and by him indorsed for value to David Nisbet; in whose hands if remained when it became due, 20th and 23d April 1765. Kellar the acceptor having become notour bankrupt about the middle of February 1765, immediately thereafter fled from Scotland; and Mr Coulter having come lately to have right this bill, as creditor to David Nisbet,
In a question of recourse between him and Martin, the drawer and indorser, the latter objected to the due negotiation of the bill, in respect there was no proof of the notification of its dishonour.
Answered, 1mo, The objector has acknowledged himself debtor to Nisbet for the contents of the bill in question; 2do, That the actual notification of the dishonour is to be presumed; and, 3tio, That the notoriety of the acceptor's bankruptcy before the bill became due, was equivalent to an actual notification, and excluded the supposition of any damage having arisen from the want of it.
The Court went upon the particular circumstances in this case. Accordingly, “Having considered the disposition by the objector, Martin, to David Nisbet, and the other trustees for his, Martin's, creditors, wherein he acknowledges that he is owing to the said David Nisbet the sum of L. 514:17:6 Sterling; and that It is not denied by his procurators that the sum in the bill in question is therein included. Find sufficient evidence that the dishonour of the said bill was properly intimated to Robert Martin; therefore decern against him for the sums, principal and interest, contained in the bill libelled on.”
The trust disposition by Martin to Nisbet, bearing in general that Nisbet was a creditor in L. 514:17:6, it was argued, contained a clause, that the stating of the debts as claimed by the creditors themselves, was without prejudice to all competent objections that might be made to any of them; therefore it was entire to Martin himself. But this, it was observed, was no more than a clause stile, generally thrown in, in all such deeds.
Act. Cullen.Alt. B.W. M'Leod.Clerk, Gibson.
Fac. Col. No 174. p. 90.
