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Scottish Court of Session Decisions >>
Ferguson v Malcolm. [1729] Mor 1559 (12 July 1729)
URL: http://www.bailii.org/scot/cases/ScotCS/1729/Mor0401559-135.html Cite as:
[1729] Mor 1559
Subject_1 BILL OF EXCHANGE. Subject_2 DIVISION IV.
Possessor's recourse against the Drawer and Indorser.
Subject_3 SECT. II.
Negotiation of Bill.
Ferguson v. Malcolm
Date: 12 July 1729 Case No. No 135.
Recourse refused, when the porteur had failed timeously to intimate the dishonour of the bill to the drawer.
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Quintin Malcolm being in the Isle of Man in May 1720 (the period of the plague at Marseilles, when all ships were ordered to undergo quarantine), drew a bill on John Ferguson, merchant in Ayr, payable to William Flood, merchant in the lst of Man, on 1st September following, at the house of Walter Davie in Dublin.
The bill was sent to Dublin, indorsed to Davie for behoof of Flood. It was, when due, protested for not payment. It was afterwards sent by Davie to Peter Murdoch, merchant in Glasgow, with orders to prosecute the drawer and drawee. During the dependence of the process before the Commissary of Glasgow, Murdoch wrote to Malcolm on 15th January 1723, who answered, ‘That, without any action at law, he should certainly have his money, though it could not be just now paid.’ Ferguson, the drawee, wrote at the same time, and on the same paper, to Murdoch, requesting delay. The bill Was afterwards conveyed by Murdoch to William Ferguson of Auchinblain, the father of John Ferguson the drawee, who insisted in the Court of Session, for recourse against Malcolm the drawer.
Pleaded in defence:—That the drawer had received no intimation of the dishonour of the bill, till eight months after the term of payment.
Answered: It was impossible to notify, there being no intercourse of correspondence on account of the quarantine.
The Lord Ordinary had found, “That the protesting of the bill had been duly notified.”
The Court found, That the protestation being in September, the notification in April is not sufficient, and, therefore, that there is no recourse against the drawer.
Against this interlocutor, a petition was refused without answers.
Lord Ordinary, Kimmerghame.Act. Hugh Dalrymple, Jas Ferguson.Alt. Andrew M'Dowall.
Fol. Dic. v. 1. p. 102. Session Papers in Advocates' Library.
