Subject_1 BILL OF EXCHANGE. Subject_2 DIVISION IV.
Possessor's recourse against the Drawer and Indorser.
Subject_3 SECT. II.
Negotiation of Bill.
Alexander Elliot v. Henry Richmond and John Pollock
Date: 5 August 1775 Case No. No 163.
Found, that by the act 12. Geo. III. cap. 72. summary diligence cannot proceed by horning against drawers and indorsers of bills within the three days of grace.
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No horning could proceed summarily against any person upon a bill, previous to the act 1681, c. 20. This act statutes and ordains, “That, in case of any foregin bill of exchange, from or to this realm, duly protested for not acceptance or for not payment, the said protest having the bill of exchange prefixed, shall be registrable within six months after the date of the said bill, in case of non-acceptance, or after the falling due thereof, in case of non-payment, in the books of Council and session, or other competent judicatories, at the instance of the person to whom the same is made payable, or his order, either against the drawer or indorser, in case of a protest for non-acceptance, or against the acceptor, in case of a protest for non-payment, to the effect it may have the authority of the judges thereof interponed thereto, that letters of horning upon a simple charge of six days, and executorials necessary, may pass there-upon for the whole sums contained in the bill, as well exchange as principal,” &c.
Upon this footing did our law stand down to the act 1696, c. 36. the words of which are:
“Statutes, enacts, and declares, That the same execution shall be competent, and proceed upon inland bills or precepts, as is provided to pass upon foreign bills of exchange, by the twentieth act of the third Parliament of King Charles the second, holden in anno 1681, Which act is hereby extended to inland bills and precepts in all points.”
By these two acts, horning was competent, after a bill was accepted, only against the acceptor himself, but neither against the drawer nor any of the indorsers, against whom a common action of recourse only lay before the late act of George III. c. 72. for rendering the payment of the creditors of insolvent debtors more equal and expeditious, &c. And the words of the act, in so far as they respect this question, are, “That all inland bills and promissory notes shall be protested in like manner as foreign bills, before the expiration of the three days of grace, otherwise there shall be no recourse against the drawers or indorsers of such inland bills, or against the indorsers of such promissory notes; and it shall be sufficient to preserve the said recourse, if notice is given of the dishonour within fourteen days after the protest is taken, without prejudice to the notification of the dishonour of foreign bills, to he made within such time as is required by the usage and custom of merchants.”—And the very next clause of the act runs thus:
“That, from and after the said 15th day of May 1772, summary execution, by horning or other diligence, shall pass upon bills, whether foreign or inland, and Whether accepted or protested for non-acceptance, and upon all promissory notes, duly negotiated, not only against the acceptors of such bills, or granters of such notes, but also against the drawers of such bills, and the whole indorsers of the said bills and notes, jointly and severally, excepting where the indorsation is qualified to be without recourse; saving and reserving to the drawers or indorsers their respective claims of recourse against each other, and all defences against the same, according to law.”
The present question arose in a suspension of a charge given to the drawers and indorsers of a bill, which was accepted but not paid when due, in order to have recourse against them.
Pleaded: It is clear, that no summary diligence by horning against drawers and indorsers is authorised by this act, unless a protest has been regularly taken within the three days of grace; now, if is not pretended that, in the present case, the bill was protested Within the three days of grace, or for many days afterwards. Hence no horning was competent against the suspenders; and, consequently, the present bill falls to be passed without caution or consignation of any kind.
Observed on the Bench: That, in this case, it was clearly the sense and understanding of all parties, as shown by the correspondence and other circumstances, that this bill was not to be subject to strict negotiation; therefore the suspenders were still liable in the contents of this bill. But the whole difficulty lay on the words of the statute, duly negotiated, i. e. in terms of the preceding statute; that it was inaccurate in the writer to the signet to issue letters of horning in such a case; and, therefore, the charger must be reserved to his action at common law.
The bill was ordered to passed on juratory caution, because it was offered, otherwise would have been passed simply without caution. see Summar Diligenge.
Act. W. Baillie.Alt. Al. Miller.Clerk, ——.
Fac. Col. No 196. p. 132.
