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Scottish Court of Session Decisions >>
William Tod v Patrick Maxwell, Merchant in Dundee. [1758] Mor 1583 (12 July 1758)
URL: http://www.bailii.org/scot/cases/ScotCS/1758/Mor0401583-151.html Cite as:
[1758] Mor 1583
Subject_1 BILL OF EXCHANGE. Subject_2 DIVISION IV.
Possessor's recourse against the Drawer and Indorser.
Subject_3 SECT. II.
Negotiation of Bill.
William Tod v. Patrick Maxwell, Merchant in Dundee
Date: 12 July 1758 Case No. No 151.
Recourse refused on a bill protested on the day after the last day of grace, though no damage could be said to arise by delaying the protest.
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Upon the 25th March 1757, Maxwell drew a bill upon Butter and Crawford at London, for L. 50, payable 24th April 1757, directing the money to be placed to his account. This bill was indorsed to William Tod, and duly accepted.
The bill was protested on Thursday the 28th April 1757 for not payment, and notice sent by that night's post of the dishonour. An action for recourse was afterwards brought against Maxwell.
Pleaded in defence, The bill ought to have been protested on the 27th April, the last of the three days of grace; and therefore was not duly negotiated.
Answered, 1mo, Maxwell cannot object to the negotiation of the bill, without proving, that Butter and Crawford were his debtors at the time the bill was presented, the contrary of which was presumable from the last words of the bill; and the only evidence produced by Maxwell, is an account dated four months before, by which a balance is due to him of L. 100: 16: 6.
2do, Maxwell suffered no damage by the delay of the protest; for it is offered to be proved, that Butter and Crawford had stopped payment on Monday the 25th of April; and that no bills protested against them either on the Monday or Tuesday were recovered.
3tio, As Wednesday the 27th, the last day of grace, was not a post night to Scotland, and advice was given of the dishonour by the Thursday's post, Maxwell was therefore acquainted, that payment had been refused, as soon as if the protest had been taken on Wednesday; and therefore could not pretend, that any damage had been occasioned by the want of due negotiation.
‘The Lords refused recourse upon this bill, and found expences due.’
N. B. In this case it was admitted, that bills drawn from Scotland upon London, have not the privilege of four days of grace; and that the decision observed by Mr Falconer, 29th January 1751, Cruikshanks against Mitchell, (p. 1578.) is wrong marked, the interlocutor there recited having been finally altered.
Act. Johnston.Alt. Macintosh.
Fol. Dic. v. 3. p. 84. Fac. Col. No 123. p. 228.
