Scottish Court of Session Decisions

This was an action at the instance of William Sommerville, blacksmith, Glasgow, against G. Aaronson, money-lender, 15 Thornton Road, Bradford, in which the pursuer sought reduction of (1) a decree of cessio pronounced against him on the petition of the defender by the Sheriff-Substitute at Rothesay, and (2) a decree of the sheriff of Renfrew and Bute dismissing an appeal brought by the pursuer to set aside the decree first sought to be reduced.

The trustee under the decree of cessio was subsequently, of consent, sisted as a defender.

The petition for cessio presented by the defender bore to proceed upon an extract registered protest of a promissory-note granted by the pursuer in the defender's favour and an expired charge made thereon.

The promissory-note was in the following terms:—“£30. Bradford, November 19, 1895. On demand I promise to pay to G. Aaronson or order at 15 Thornton Road, Bradford, the sum of thirty pounds for value received.— William Sommerville.” This promissory-note bore upon it the following note of protest:—“Henry Fison Killick, notary, Commercial Bank Buildings, Bradford, Yorks., noting 2/6, no funds.” This note was never extended into a protest, but upon 23rd October 1896 the bill was presented

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for payment at Millport, where the pursuer was at the time, and payment not having been made of the balance of the sum in the promissory-note, amounting as the defender alleged to £15, 10s., a protest was made out in the following terms—“Know all men that I, William Hunter, householder, of Stewart Street, Millport, in the county of Bute, in the United Kingdom, at the request of G. Aaronson, 15 Thornton Road, Bradford, the payee and holder of the promissory-note after mentioned—there being no notary-public available—did on the 23rd day of October 1896 at Millport demand payment of the promissory-note here underwritten from William Sommerville, blacksmith, Millport, the maker thereof, under deduction of £14, 10s. paid to account, leaving a balance of £15, 10s. due, to which demand he made answer, ‘My affairs are in the hands of a law-agent’, and payment was refused accordingly, wherefore I now, in presence of James Wallace, house factor, Bute Terrace, Millport, and James M'Connachie, gardener, Glasgow Street, Millport, do protest the said promissory-note.” On 29th October 1896 this protest was registered in the Sheriff Court books of Bute for preservation and execution, and thereafter Sommerville received a charge to pay the note. The charge expired without payment being made, and thereafter the defender presented a petition for cessio against the pursuer, founding upon the extract registered protest and the expired charge, and thereupon the decree now sought to be reduced was granted in absence of the pursuer on 8th January 1897.

With regard to the protest at Millport, the pursuer averred—“Cond. 4). The said bill for £30, on which the said petition for cessio followed, was not duly protested by a notary-public in terms of the Bills of Exchange Act 1882, and the summary diligence which followed on the protest of the said bill was illegal under the said Act.” The defender in answer averred—“(Answer 4). … The said bill was protested in the presence of two witnesses by a householder of Millport, because the services of a notary could not be obtained at the place of protest. There is no notary-public resident in Millport.”

The Bills of Exchange Act 1882 (45 and 46 Vict., cap. 61) enacts as follows:—Section 45, sub-section 5—“Where a bill is presented at the proper place, and after the exercise of reasonable diligence no person authorised to pay or refuse payment can be found there, no further presentment to the drawee or acceptor is required.”

Section 51, sub-section 6—“A bill must be protested at the place where it is dishonoured: Provided that … ( b) when a bill drawn payable at the place of business or residence of some person other than the drawer has been dishonoured by non-acceptance, it must be protested for non-payment at the place where it is expressed to be payable, and no further presentment for payment to or demand on the drawee is necessary.”

Section 87, sub-section 1—“Where a promissory-note is in the body of it made payable at a particular place, it must be presented for payment at that place in order to render the maker liable.”

Section 94—“Where a dishonoured bill or note is authorised or required to be protested, and the services of a notary cannot be obtained at the place where the bill is dishonoured, any householder or substantial resident of the place may, in the presence of two witnesses, give a certificate signed by them, attesting the dishonour of the bill, and the certificate shall in all respects operate as if it were a formal protest of the bill. The form given in Schedule I to this Act may be used with necessary modifications, and if used shall be sufficient.” The protest above quoted was in the form given in Schedule I.

Section 98—“Nothing in this Act or in any repeal effected thereby shall extend or restrict or in any way alter or affect the law and practice in Scotland in regard to summary diligence.”

On 20th October 1897 the Lord Ordinary ( Kyllachy) pronounced the following interlocutor:—“Reduces, decerns, and declares in terms of the conclusions of the summons: Finds the pursuer entitled to expenses as against the original defender, subject to modification; modifies the same at one-half of the taxed amount thereof.”

The defenders reclaimed.

There was no note of any opinion of the Lord Ordinary before the Court, but it was stated at the bar that the ground of his decision was that summary diligence could not proceed upon a protest of a promissory-note made by a householder in terms of the 94th section of the Bills of Exchange Act 1882.

Argued for the defenders and reclaimers—(1) Section 94 of the Bills of Exchange Act 1882 was quite general, and was not limited as regards summary diligence by section 98. The protest was no part of the law and practice in regard to summary diligence. But even if it were it was not essential that it should be a notarial protest. The Acts 1681, c. 20, and 1696, c. 36, made no mention of a notarial protest, but merely required that the bills should be “duly protested,” which meant duly protested according to the law in force at the time, and since 1882 the law sanctioned protest by a householder if no notary were available. If a householder's protest could not be used as the foundation of summary diligence, then practically section 94 was of no effect in Scotland. If the Legislature had intended this the Act would have contained an express provision to that effect. (2) The bill was first presented for payment at the place of payment, but though this was necessary, and though no subsequent presentment was necessary, yet it did not follow that such second presentment was illegal—Bills of Exchange Act 1882, section 45 (5). There was nothing to prevent a second presentment and a second dishonour of a bill or note. The debtor had certainly no right to complain of such second presentment. From the point of view of justice the important thing was

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presentment to the person bound to pay rather than presentment at a particular place. Presentment and protest made in the creditor's own office was not looked upon favourably by the law. See Bartsch v. Poole & Company, December 18, 1895, 23 R. 328.

Argued for the pursuer and respondent—(1) Section 94 of the Bills of Exchange Act of 1882 was intended to apply to cases in which a protest was required for other purposes than summary diligence. “Authorised or required” meant authorised or required by the Act, as in sections 51 and 67. This interpretation gave quite sufficient effect to section 94 without bringing it in to revolutionise, as it would, the law of summary diligence in Scotland, which in terms of section 98 was not to be altered or affected by the Act. If a protest by a householder under section 94 was to be sufficient for purposes of summary diligence, then where the statement that a notary could not be obtained was denied, as here, extraneous proof would be necessary, and it was a cardinal principle of the law of summary diligence on bills that it was not competent where any extraneous evidence was necessary to support it— Smith v. Selby, July 10, 1829, 7 S. 885; Fraser v. Banner man, June 21, 1853, 15 D. 756. (2) Apart from this question, however, the protest was bad, because it was not made at the place where the note was dishonoured—Bills of Exchange Act 1882, section 51 (6). Section 94 only applied when a notary could not be obtained at the place where the bill was dishonoured, which in this case was Bradford, where it was not maintained there was any want of notaries.