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SCOTTISH_HoL_JURY_COURT

Page: 396↓

(1745) 1 Paton 396

REPORTS OF CASES ON APPEAL FROM SCOTLAND.

No. 76.

George Ochterlony, Appellant

v.

Archibald Hunter, et alii, Respondents

9 April, 1745.

Subject_Bill of Exchange.—

Found that one who had retired bills in London, supra protest, for the honour of the drawer, (who was in Scotland,) was not debarred of his recourse against the drawer, although he did not give notice of the dishonour of the bills for eight days.

Found also that this was a sufficient notification of the dishonour of other bills, retired in the same way, although payable after the date of the letter.

[Kilkerran, p. 73. Elch. voce Bill of Exchange, No. 32; Dict. III. 54; Mor. 1567; Brown's Supp. v. 733.]

Several bills were drawn in Scotland by Hunter, upon Charles Murray in London, payable to Peter Murdoch, merchant in Glasgow, or order. These bills were paid by Ochterlony supra protest, for

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the honour of the drawer. There were a variety of questions between the parties; but the present report relates only, 1st, to a bill for L.400, dated the 19 March, 1736, which was paid by Ochterlony on the 18 May following; 2dly, to a bill dated 19 March for L.250, and paid 22 May, with regard to which two bills, Ochterlony, on the 26 of May, wrote to Hunter, saying, “I have paid all of them that have fallen due since the 18 March last, supra protest, for your honour, &c.” and 3dly, to certain other bills which were paid in the same way subsequent to the date of this letter.

In the action at Ochterlony's instance, against Hunter (the drawer) for recourse, the question occurred, How far one who pays supra protest, for the honour of the drawer, is bound to give the same timeous notification, as the holder is of the dishonour of the bill? ^*

The pursuer argued, that there was a great difference between the case of a bill being paid supra protest for the honour of the drawer, and that of a bill being protested for non-payment or non-acceptance by the holder of it. In the latter case, the holder undertakes diligence in virtue of the bill contract, and the most exact diligence therefore is required in every respect, and particularly in the point of notification; and if he fail in this, he is held to have lost his recourse, although damage cannot be proved: but it is different with regard to him who pays supra protest for the honour of the drawer. He has undertaken no diligence, and has interfered merely from motives of friendship,

_________________ Footnote _________________

* With regard to certain bills, which had been paid a considerable time before the date of the letter above referred to, it was held to be clear that the pursuer had lost his recourse.

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and can therefore only lose his recourse, if it be proved that damage has been incurred by his interposition, and by his failure to notify.

Hunter answered, that the two cases were the same; that the drawer ought not to be put in a worse case by another's interposing than he would have been had it been left to the holder to notify the dishonour; and that the reason of the thing applied to both cases, viz. that the drawer may be put on his guard, to secure the effects of the person on whom he has drawn the bills.

The Lord Ordinary, Dun, (February 8, 1743,) remitted to Messrs. Coutts, Arbuthnot, and Hay, bankers in Edinburgh, to report their opinion “as to what time notification ought to be sent to the drawer of a bill, and how soon that the same is dishonoured by not payment, in order to entitle to recourse; and as to the effect of the pursuer's letter of notice to the defender of the 26 May, and what effect the said notification might have, both with respect to the bills formerly due, taking notice of the respective terms of payment, anterior to the said notification, and also what effect the same can have with respect to those bills which were on the said 26 May not due or payable, but which were afterwards paid by the pursuer, and whereof he gave notification that they were dishonoured; and allowed either party to get what opinions they thought fit from merchants in Edinburgh or in London, to clear up the custom observed in such cases.”

The gentlemen above named reported their opinions to be, that in the case of a bill taken up supra protest for honour of the drawer, in order to entitle the payer of the bill to recourse, notification

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ought to be made to the drawer the post immediately after taking up the bill or the next following post. That therefore the letter of 26 May was not due notification with regard to a bill that had been received five days before its date. On the other hand, the London bankers were of opinion that by law as well as by custom of merchants, a person who retired a bill supra protest for the honour of the drawer, was allowed fourteen days to notify the same to the drawer, in order to entitle him to recourse, and that the letter of the 26 May was a sufficient notification for all the bills that fell due within fourteen days after the date of the said letter; and they therefore thought Hunter liable unless he could show that he had sustained loss for want of notification.

21 Dec. 1743.

The Court, (24 November, 1743,) ^* found that the letter of the 26 May was a sufficient notification to entitle the pursuer to recourse against the defender for two of the bills, viz. the bill of the 19 March, which was paid on the 18 May, and the bill of the same date, paid on the 22d; but found that the said letter was not a sufficient notification of the dishonour of the bills paid after its date. But upon advising a reclaiming petition and answers, the Lords found, “That the above letter was not a sufficient notification to entitle the pursuer to recourse for the bill paid on the 18 May; and they adhered to the rest of the former interlocutor.”

Entered 17 Jan. 1744.

An appeal was brought from that part of the interlocutor of the 24 November, 1743, which found that the letter of the 26 May was not a sufficient

_________________ Footnote _________________

* See Kilkerran as to the opinions of the Court.

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notification of the dishonour of the bills paid after its date, and also from the interlocutor of 21 December.

Judgment, 9 April, 1745.

After hearing counsel, “it is ordered and adjudged, &c. That so much of the interlocutor of the 24 November, 1743, whereby it is found, “That the letter of the 26 May, 1736, was no sufficient notification of the dishonour of the bills paid by the appellant after the date of said letter,” and also so much of the said interlocutor of the 21 December, 1743, whereby it is found,” “that the said letter was not a sufficient notification to entitle the appellant to recourse against the said Robert Hunter for the bill dated 19 March, 1736, and paid supra protest on the 18th May thereafter,” be and the same is hereby reversed; “And it is further ordered and adjudged, that the residue of the said interlocutors complained of be, and the same is hereby affirmed.”

Counsel: For Appellant, Ro. Craigie, W. Murray.
For Respondents, A. Hume Campbell, C. Erskine.

This reversal is not noticed in the reports. Kilkerran, however, states, that the judgment of the Court of Session proceeded on the ground that Hunter was “only a nominal drawer, whose faith was not followed by the porteur of the bills, the person by whom they were payable, nor by Ochterlony, who accepted supra protest for honour.”

1745