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Scottish Court of Session Decisions >>
Messrs Hawkins and Co. v John Cochran. [1757] Mor 1581 (24 June 1757)
URL: http://www.bailii.org/scot/cases/ScotCS/1757/Mor0401581-149.html Cite as:
[1757] Mor 1581
Subject_1 BILL OF EXCHANGE. Subject_2 DIVISION IV.
Possessor's recourse against the Drawer and Indorser.
Subject_3 SECT. II.
Negotiation of Bill.
Messrs Hawkins and Co v. John Cochran
Date: 24 June 1757 Case No. No 149.
The pursuer of recourse is not obliged to return the bill and protest to the drawer, until he receive payment.
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In a process, for recourse against the drawer for a bill of exchange, it appeared that the bill was protested within the days of grace for not payment, and that due notice was given of the dishonour of the bill. The defence insisted on was, That the bill was not returned to the drawer till 39 days after it was dishonoured.—It was answered, That the indorsee who protests the bill for not payment, is not bound to part with his security to the drawer more than to the acceptor. Nor is it sufficient to say, that the indorsee ought, in equity, to return the bill and protest to a correspondent, in order to be delivered up upon receiving payment; for the holder of a bill is not bound to have a correspondent in the place where the drawer lives. Were that necessary, a correspondent would be also necessary in the different places where the indorsers live.
The Court repelled the defence, upon this ground, That the bill and protest belonged to the pursuer of the recourse; and that he was not bound to part with the document of his debt or his diligence, till he got payment.
Sel. Dec. No 130. p. 186.*** The same case is reported in the Faculty Collection:
John Cochran drew a bill, bearing value, upon Fergus Kennedy, for L. 28, payable seventy days after date. This bill was indorsed to Woodrop, by him to Hawkins Hamilton and Company of Lynn-Regis, by them to Hawkins of Sunderland, and from him, through several hands, it came to Townshend of London; who not getting payment, regularly protested it, and returned it upon Hawkins of Sunderland.
Hawkins Hamilton and Company of Lynn-Regis, gave due notification of the dishonour of the bill to John Cochran; but Hawkins of Sunderland, instead of returning the bill and protest to Cochran, sent it back to a correspondent in London, to try if payment could be got of it; by which means the bill and protest did not come into the hands of Cochran till 39 days after the dishonour of it.
Cochran being pursued upon recourse by Hawkins Hamilton and Company of Lynn-Regis, and by Hawkins of Sunderland, objected, That they had lost the recourse, by keeping up the bill and protest so long as 39 days after the dishonour, and that they ought to have been returned the third post.
‘The Lords repelled the defence, and found expences due.’
Act. Lockhart.Alt. Burnett.
Fol. Dic. v. 3. p. 88. Fac. Col. No. 29. p. 50.
